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CSABA VARGA
TRANSITION? TO RULE OF LAW?
Constitutionalism and
Transitional Justice Challenged
in Central & Eastern Europe
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CSABA VARGA was born in Pécs. Since graduation in law in 1965,


he has been an academic researcher at the Institute for Legal
Studies of the Hungarian Academy of Sciences, since 1991 as
scientific adviser. He became a Professor of Law at the
metropolitan Eötvös Loránd University in the same year. By the
foundation of the Faculty of Law of the Pázmány Péter Catholic
University of Hungary in 1995, he founded and has also been
heading its Institute for Legal Philosophy, granted by the National
Accreditation Committee in 2006 the sole title “Place of
Excellence” for a chair in the country. One of the founders (as its
secretary between 1976–2006 and since then as its chairman) of
the Hungarian National Section of the International Association for
Philosophy of Law and Social Philosophy (IVR); a political adviser
to and a member of the Advisory Board of the first free-elected
Prime Minister of Hungary (1991–1994), serving as an editorial
board member of Current Legal Theory (1983–1998), Ratio Juris
(1988–), Legal Theory (1993–1999), as well as of Világosság [a
philosophical forum] (2003–). In 2004, he was elected as an
associated member of the International Academy of Comparative
Law. His bibliography is available in both http://varga.jak.ppke.hu
and Theatrvm legale mvndi Symbola Cs. Varga oblata, ed. Péter
Cserne et al. (Budapest: Szent István Társulat 2007), pp. 609–674
[Philosophiæ Ivris / Bibliotheca Ivridica: Libri amicorvm 24].
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CSABA VARGA
TRANSITION?
TO RULE OF LAW?
Constitutionalism and
Transitional Justice Challenged
in Central & Eastern Europe

Pomáz, 2008
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On the cover
a symbol of action with counter-force
from the Sachsenspiegel
[Heidelberg Univ. Bibl., Cpg 164, fol. 14v & 21v]

For the realisation of the tasks defined in


and thanks to the finance granted by
the Hungarian Scientific Research Fund
project No. K 62382 (2006–2009)

Parallel edition with


Jogállami? Átmenetünk?
(Kráter, Pomáz, 2007)
[PoLíSz-könyvek 6]
in an enlarged version

ISBN 978-963-9735-44-6
ISSN 1589-3405

© Csaba Varga, 2007


© Kráter Mûhely Egyesület, 2007

Published by Kráter Mûhely Egyesület


(Kráter Workshop Association)
Hungary, HU-2013 Pomáz, Búzavirág str. 2.
Tel./Fax: +36 28 328 491
info@krater.hu * www.krater.hu

Printed in G-Art-Print Ltd.


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CONTENTS
TOWARDS A TRANSITION TO RULE OF LAW
Radical Change and Unbalance of Law in a Central Europe
under the Rule of Myths, not of Law [1996] . . . . . . . . . . . . . . . . . .9
1. Post-modernity Diagnosed [9] 2. Radical Change with Radical
Uniformisation [10] 3. Some Symptoms [16] (a) Unpreparedness [17] (b)
Utopianism [18] (c) Bibó-syndrome [19] (d) Between the West – and the West
[21] 4. Brave New Start with Tradition Left Behind [23]
Legal Scholarship at the Threshold of a New Millennium
in the Central and Eastern European Region [1997] . . . . . . . . . . .26
(Naivety from the Beginning) [27] 1. (The Limits of Law-modernisation) [33]
2. (The Need for Scholarly Reconsideration) [34] 3. (Rebuilding the Social
Contexture of Law) [36] 4. (Following Alien Patterns) [37] 5. (Want for
Clarification) [42] 6. (New Unorganic Components) [46] (Past Legacy in Legal
Experience and Scholarship [46])
Rule of Law: Imperfectly Realised, or Perfected
without Realisation? [2000] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1. Declarations [50] 2. Question-marks [54]
Rule of Law – at the Crossroads of Challenges [2001] . . . . . . . . . . . 59
(Law: Values & Techniques [59] Human-centeredness and Practical Orientation
[66] Theological and Anthropological Foundations [74] An Irreplaceably Own
Task [80] Recapitulation [81] A Final Remark in Comparison [82])
Rule of Law, or the Dilemma of an Ethos: to be Gardened or
Mechanicised [2007] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
I (Two Models for Transition, Post-WWII and Post-Communism) [85] II (With
Differing Understandings) [91] III (What is to Remain if the Peak is Shaken?)
[95] IV (Circus Trainer, or a Gardener?) [98] V (The German Master v. the
Hungarian Disciple) [100]

THE BURDEN OF THE PAST


Why Having Failed in Facing with the Past? [2003] . . . . . . . . . . . . 107
Creeping Renovation of Law through Constitutional
Judiciary? [2005] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
1. Transitions in the Age of Globalisation [117] 2. Constitutional Assessment:
the Hungarian Way [122] 3. An Example: Human Dignity in Isolation and
Sterility [133] 4. Public Law Privatised with the State Targeted as a Common
Enemy [138] 5. A Future with no Past [146] 6. Legality with Justice Silenced:
Crimes and Unpunishment [147] 7. Rule of Constitutional Court Dicta, not of
Law [154] 8. A Sliding Self-image [157]
What Has Happened and What Is Happening ever Since
(In Remembrance of Deportations to Forced Work
Camps at Hortobágy) [2005] . . . . . . . . . . . . . . . . . . . . . . . . . . . .161
(Preliminaries to a Betrayal [161] “Deportation” with Consequences [165]
“Deportation” with no Silence Broken Since [168] Considerations on How to
Treat the Past after the Communism has Fallen [171] Cul-de-sac as Assessed
even by Liberal Standards [175])
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1956 Judged by Ethics and Law, or the Moral Unity


of the Law’s Responsiveness as a Post-totalitarian
Dilemma [2006] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .178
(Law and its Socio-ethical Basis [178] The Necessity of an Ethical Minimum
in Law [185] The Drama of 1956 [187] The Shame of Posterity for the Law
getting Silenced [192])

PERSPECTIVES
Failed Crusade: American Self-confidence,
Russian Catastrophe [2002] . . . . . . . . . . . . . . . . . . . . . . . . . . . .199
(1. The Pattern-provider and its Transitology [199] 2.a. Organised Pressure on
Making Patterns Followed [202] 2.b. Provoked Bankruptcy [206] 2.c. Cui
prodest? [210] 2.d. Democracy Conceived in Tutelage [214] 3. Becoming a
Pray of Globalism [216])
“Radical Evil” on Trial [2002] . . . . . . . . . . . . . . . . . . . . . . . . . . . . .220
A. Historical Background [222] B. Normative Dimensions [225] a) Political
Aspects [225] b) Moral Aspects [227] c) Legal Aspects [227]
Rule of Law between the Scylla of Imported Patterns
and the Charybdis of Actual Realisations
(The Experience of Lithuania) [2004] . . . . . . . . . . . . . . . . . . . . .236
Transitology Questioned [236] Lithuania [238] (Ideal: Law & Balance [239]
Ideal: Rights Counterbalanced by Duties [241] Anything Except to Democracy
in Outcome [242] Legal Personalism as a Response [246]) A Call for Local
Experience Assessed [246]

WHAT CAN BE HOPED FOR NOW?


In Bondage of Paradoxes, or Deadlock at the Peak of the Law
we have Created for Ourselves [2007] . . . . . . . . . . . . . . . . . . . . .251
(A ‘Good’ Constitution [251] With Moral Crisis behind It [254] In Want of
Legal Defence Available [259])
At the Crossroads of Civil Obedience and
Civil Disobedience [2007] . . . . . . . . . . . . . . . . . . . . . . . . . . . . .262
(Civil Disobedience [262] Civil Obedience [267])

Subject index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273


Index of Normative Materials . . . . . . . . . . . . . . . . . . . . . . . . .283
Name index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .284
Bibliography of CSABA VARGA’s further books . . . . . . . . . . . . .290
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TOWARDS A TRANSITION
TO RULE OF LAW
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Towards a transition to rule of law

RADICAL CHANGE AND


UNBALANCE OF LAW
in a Central Europe under the Rule
of Myths, not of Law*
1. Post-modernity Diagnosed
In contrast to the end of World War Two, when allied
administration, avoiding implanting home democracy into an
emptied space, resorted rather to orders: from above, from outside,
for long years, from within the comfort of military administration
and censorship, in order to re-educate people through imposing
values upon them so as to make society prepared for being able to
operate democratic machinery with optimum results, transition
from Socialism as a democratic process from the beginning,
building step by step (as marshalled by historical incidentalities of
given moments) upon the instrumentality of the rule of law, was to
base on the only legacy left: annihilation of the sensitivity to public
affairs and communitarian interests, extinction of the very idea of a
self-governing civil society, emptied morals, and whatever kind of
authority shattered. Instead of an allied care for that dictatorship
would be rejected without offering it the chance of transforming

* In its first version in Hungarian, ‘A jogváltás paradoxonai’ [Paradoxes of the change-over


of laws] Magyar Szemle V (1996) 12, pp. 1186–1196, and in English, as commissioned by
the Nagoya CALE for 2004, in Hungary’s Legal Assistance Experiences in the Age of
Globalization ed. Mamoru Sadakata (Nagoya: Nagoya University Graduate School of Law
Center for Asian Legal Exchange 2006), pp. 185–195, under the common title I gave to the
project as ‘Transition to Rule of Law: A Philosophical Assessment of Challenges and
Realisations in a Historico-comparative Perspective’. In the research scheme, I promised (p.
185) that “The research is to focus on the nature of the transition after the fall of
Communism in Central and Eastern Europe in general and in Hungary in particular with
special emphasis on the issue of adequacy of ends and means in the process. The demanding
complexity of both ends under limiting conditions and the available store of instrumental
patterns are to be analysed in parallel. The aim is to show the emerging contrast between
points of view which, on the final analysis, are defined by historical universalism, on the one
hand, and historically bound particularism, on the other. The quest for open society,
constitutionalism and human rights is also assessed on both philosophical and empirical
grounds. On the final account, transition is shown as a test case for responding to several
contemporary dilemmas of law which are more visible under the given (transitory) conditions
than as closed into their otherwise everyday routine in the Atlantic world.”

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into our future alleged liberalism, the political and legal continuity
of the past has by far not been broken from inside, as velvet
revolution has only continued past legality.
Legal development has been channelled through pattern-
borrowing and transplants, in the process of which unpreparedness,
utopianism, fetishisation of abstract principles under the aegis of
false constitutionalism as well as a lack of co-ordination in the
practical shaping of the law have been mixed. No wonder therefore,
if subsequent liberalisation may now damage community cause in
want of established conventions or if a series of ad hoc
departmental interference with overall domestic evolvement may
produce situations next to chaos and anarchy, in want of any
systematic plan with communitarian responsibility.
Own legal traditions are being formed in the process,
notwithstanding. These are mixed, drawing mostly from both past
Socialist routine and present-day civil law, common law & Atlantic
inspirations, as well as European Union practices, upon the basis
of a style and understanding of law surviving from our past barely
transcended.
Resurgence of national traditions can be hoped for in the
long run only. In the womb of the overall process, they are already
in re-formation but can presumably take visible shapes only after
the present acceleration of changes will have organised them into a
more organic, coherent and thoroughly co-related unity.

2. Radical Change with Radical Uniformisation


Radical changes in law are always dangerous.
Unpreparedness and the self-comforting feeling of security,
inspired by what seems to be evidence to others, may create a
vacuum of uncertainty, in which practically anything can happen.
When the wind of changes came to the Central and Eastern
European region in the early ’80s, every advisor, scholar and
government expert—be it Eastern or Western, on the steppes or in
the Atlantic world—suggested about the dialectics of the process of
democratic transformation, in terms of which MARXism would be

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right once again in that gradual accumulation of quantitative


changes would lead to a new quality, and finally a complete
change-over of entire social, political and economic systems would
take shape from the limited possibilities of a “soft dictatorship”.
The global euphoria ensuing from the unexpected collapse of
the former regime has also strengthened the public belief that we
just need to clean up what is left over from the past, and the West
will simply extend its border over us.
The disillusioning truth is that nothing but arrogance and the
effects of a beggar-stretch-of-hand by the big powers are what the
nations concerned received, instead of a real help. Furthermore,
the output was broken: unorganised, inconsiderate, and it was poor
in both empathy and imagination. Lacking any creative energy, the
West could only offer its exceedingly known everyday routine
within its used-clothes-action, for it was naive and lazy enough not
even to contemplate about some adaptation.1
Mentality, characteristic of intellectuals and journalists
chewing on dropped bones, with an unscrupulous flourishing of false
universalisations, hegemonistic ethno-centrisms, paradigmatic over-
generalisations, as well as unjustified extrapolations—all these are
oozing towards us from the international workshops of our post-
modernity. As with self-inducting spirals of bad habits, such forces
operate under the surface, demanding a constantly increased dosage
in order to provoke some effects at all.
When I had the first opportunity in my life to travel abroad
in the year of the Prague Spring, I was disappointed by what the
utmost idol of my youth, l’esprit français, had given me through the
courses of la Faculté Internationale pour l’Enseignement du Droit
Comparé in Strasbourg. In response to my longing for an outlook of

1 Cf., e.g., first of all, Paul H. Brietzke ‘Designing the Legal Frameworks for Markets in
Eastern Europe’ The Transnational Lawyer 7 (1994), pp. 35–63; by Gianmaria Ajani, ‘La
circulation des modèles juridiques dans le droit post-socialiste’ Revue internationale du
Droit comparé 46 (1994), pp. 1087–1105 & ‘By Chance and Prestige: Legal Transplants in
Russia and Eastern Europe’ The American Journal of Comparative Law XLIII (Winter 1995),
pp. 93–117; as well as Ugo Mattei Introducing Legal Change Problems and Perspectives in
Less Developed Countries [manuscript of an address to the World Bank Workshop on Legal
Reform on 14 April 1997] (Berkeley & Trento 1997) 19 pp. Further on, cf. also, by the
present author, ‘Legal Scholarship at the Threshold of a New Millennium in the Central and
Eastern European Region’ in the present volume.

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high-soaring mentality, I found self-conceit addled into narcissistic


self-complacence. For even the cavalcade of legal cultures, proving
the rich variety within human civilisation, has only served as a
pretext to my French professors to chat about their favourite one, la
culture juridique française in French, only to be admired by their
foreign students. Later on, I could realise how much this was true
for other fields as well. For instance, the famous American
pragmatism has proven to be much rather an ordinary disguise for
hiding nation-wide rootlessness deriving from the lack of historical
knowledge, moreover, for transforming local deficiency into a virtue
to be followed as a global pattern. I might have felt something
similar when the usual US response to any burning issue was quite
a ready-made panel, for instance, by comparing American
constitutional patterns to communist claims of reforming their
domestic law (taking Soviet verbalism for granted actuality),2 or by
proposing the Latin American, or later on, the Spanish model of
democratic transition as a theoretical framework within which to
explain the transformation in Central Europe from the Communist
rule of dictatorship into Rule of Law.3 This blindness, fooling itself
with global tendencies, has become constant by now. The advisory
help, well-intentioned initially, albeit motivated by self-interest,
has degenerated into an apodictic ruling, knowing no doubts, no
exceptions. Fashion products—from FUKUYAMA’s Utopia on the
liberal ending of history4 to armchair-theories of Chicago-
economists on the curative effect of free markets without control—
are advertised both on intellectual markets and by international
agencies (mostly used as the fora of exerting imperialistic
influence), as if they were the embodiments of some ever-lasting
universal truth.5 The humble consumer can realise it only later that

2 Cf., by the author, Lectures on the Paradigms of Legal Thinking (Budapest: Akadémiai
Kiadó 1999) vii + 279 pp. [Philosophiae Iuris].
3 Cf. Juan J. Linz & Alfred Stepan Problems of Democratic Transition and Consolidation
Southern Europe, South America, and Post-Communist Europe (Baltimore & London: The
Johns Hopkins University Press 1996) xx + 499 pp.
4 Francis Fukuyama The End of History and the Last Man (London: Penguin 1992) xxiii + 418 pp.
5 Cf., as a case study, Stephen F. Cohen Failed Crusade America and the Tragedy of Post-
Communist Russia (New York & London: Norton 2000) xiv + 304 pp., reviewed by the
present author as ‘Failed Crusade: American Self-confidence, Russian Catastrophe’ in the
present volume.

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how much he has been tricked by resounding phrases. For it can


happen that demolished fortresses and bombed churches are
conserved in their ruins according to the Venice Charta on the
protection of historical monuments,6 and it would be a later (and
sometimes also too late) realisation only that tourists will actually
prefer and flood well-preserved countries and monuments, and not
the ones which may have had a bad luck with a tourmoiled history.
At this point, the addressee of others’ thought, mainly in the once
Soviet-dominated Central Europe, might then contemplate more
deeply about the fact that maintenance workshops have all over
Europe repeatedly changed every stone of medieval cathedrals
while repairing them throughout the last half-thousand years—just
as every cell of our body renews from time to time, so that our body
can function properly.
The world is in process of unification and with the post-
modern myth of and harsh demand for a global village, the newest
call-word of universalism is also born. This leads our former local
MARXists from their belief in historical determinism to some a-
historical floating. For our intellectual elite chases the newest
thought-products as if it was the case of philosophical devotion.
They are not even afraid of introducing their own “class-rule” in
order to implement and materialise them.7 Now they dedicate their
routine in ideological criticism (which MARX and ENGELS used in
their The German Ideology to generalise everything particular) to
convert their revolutionary intellectual radical illusion of
“Anything is possible!” into practice. When, for instance, the
intellectual elite in Hungary decided to make political use of the
taxi-drivers’ blockade in 1991, they were prepared to take any
action at please and they actually threatened the government from
the very beginning to neutralise and divert any measure it might
have taken. Unfoundedly referring to the doctrine of “civil

6 Charte Internationale sur la Conversation et la Restoration des Monuments (Venise 1964).


7 E.g., György Konrád & Iván Szelényi Az értelmiség útja az osztályhatalomhoz (Paris:
Európai Protestáns Magyar Szabadegyetem 1978) 212 pp. & (Budapest: Áramlat Független
Kiadó 1985) 206 + xxi + 6 pp. {The Intellectuals on the Road to Class Power trans. Andrew
Arato & Richard E. Allen (Brighton: Harvester & New York: Harcourt Brace Jovanovich
1979) xix + 252 pp.}.

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disobedience”,8 they not only gave a false justification for the


disorder caused by taxi-drivers, the specimens of the new
entrepreneurship (with excelling communication and thereby also
organisational facilities) in the country, but they also attempted to
make the functioning of constitutional and public institutions, as
well as the legality of the new rising law and order, the function of
random intentions of casual mob guys.
The problem is by no means with anyone making mistakes
but in the very fact that the new-born cult of total freedom lacks
both communitarian empathy and responsibility, and also
responsiveness. Rejecting participation and responsibility, only
their blind selfishness is increasing, which is about to arrogantly
turn against everything historical, local and traditional, that is,
everything that derives from common sense, everything people
have bitterly experienced over generations. To all this adds an
atmosphere characterised by the exclusifying impatience drawn
from the old times, over-engagement in politics and over-
ideologising with discrediting any kind of doubt and ridiculing any
new, truly creative independent thought. In the meantime, the
demand for an open-chance debate, genuinely clarifying the basic
situation and the underlying issues does not even occur. This is
when the course of events may take a bad turn. Even taking the
stipulations of the old law seriously can suddenly become a “witch-
hunt”. The most natural desire of searching for an own path on any
third road (in the exclusive sense of challenging the mainstream) is
laughed at as if it were something backward. In want of any
creativity, our proud scholarship fails also in the recognition of the
ancient wisdom, according to which whatever we long for, be it
“external pattern” or “own path”, actually a compromise between
the two can be arrived at at the most.9

8 Cf., by the author, ‘Civil Disobedience: Pattern with no Standard?’ in his Transition to Rule
of Law On the Democatic Transformation in Hungary (Budapest: [AkaPrint] 1995), pp.
111–118, and the entire part focussing on the topic in it, »Skirmishes and the Game’s Rule«,
pp. 91 et seq. [Philosophiae Iuris].
9 Cf., by the author, ‘Trumbling Steps of the New Constitutional State’ in his Transition to
Rule of Law [note 8], pp. 78–89, and ‘A hagyomány talajáról’ [On the soil of tradition, 1991]
in his Útkeresés Kísérletek – kéziratban [In search for a path: Attempts unpublished]
(Budapest: Szent István Társulat 2001), pp. 144–148 [Jogfilozófiák].

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These hammerings in are located in a mentally emptied


medium. Originality, ability of sizing up situations, sharing or
respect for larger communities—certainly none of them is their
virtue. One may recall the enormous burden of the post-war
transformation in Germany and Japan, mainly born of the United
States. Yet, all we tend to forget that the United States did not
export its democratic tradition and the underlying rule of law with
its military expedition overseas, but it concentrated its efforts to
prove the culpability of the regimes it had to overcome. That is,
when risking its own neck, even the United States had no scruples
about experimenting something new and opportune. In addition,
this was obviously right a choice, as this was the only secure means
for the old practices and institutions to be discontinued in the
doomed regimes. Consequently, the US military and occupying
administration avoided implanting home democratic measures into
a kind of abstractly emptied space, instrumentalities that could
equally serve all imaginable players. They rather resorted to
orders: from above, from outside, for long years, from within the
comfort of a military administration and censorship, intervening
with a power-display on an everyday basis. When the sheer force
was not enough either, they invoked to the otherwise neglected
natural law, so that the law and the legal continuity of the defeated
should be broken from inside. All in all, occupying allied forces did
not give the past the chance to grow into the future, and more
importantly, they did not degenerate the law into a mere
instrument, in terms of which anyone who handled it could use it
for the legitimisation of past continuity. Although, the repeatedly
damned National Socialism lasted for barely a dozen of years, and
its replacement did not presume any change in the economic
formation either.10
At the same time, on the ruins of the Soviet empire, the most
stubborn effect of the devastation by long decades is not in the
mere fact of dictatorship but in the destruction suffered by
individual souls: annihilation of the very sense of public affairs,
public interest and communitarian service; extinction of the very

10 For some treats of basic difference, cf. Claus Offe Varieties of Transition The East
European and East German Experience (Oxford: Polity Press 1996) viii + 249 pp.

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idea of a self-governing civil society; emptying morals, and


shattering whatever kind of authority. Thus, there is nothing at
stake in the process of changing our set-up in legacy afterwards: if
we are only restricted to assure an equality of chances or declare
rights at the mighty please of everyone (as in well-established
democracies), then we obviously will not be able to restore the
damages occurred over generations in public morals and
community values. Instead of any curative effect, we can at the
most deepen decomposition by mixing good and bad, and
completing thereby the job of turning les fleurs du mal—or,
CHARLES BAUDELAIRE’s Flowers of Evil—into virtues. Yet,
construction presumes constructive action through intervention
(and not mere contemplation), its characteristic means being
initiative, participation, selection, and preference (instead of
resignation, indifference, or neutrality), that is, a kind of empathy
and positive discrimination.11

3. Some Symptoms
Our future is being forged today. It is now that we are
sampling its ideals, style and rites. The day’s practice will grow
into the next day’s habits. We will find comfort in what we enjoy
today. What we have done so far may already warn us by its varied
lessons and infinite examples. In the following I will only rely upon
the formulation of some characteristics and temptative conclusions.

11 For the contrast—never justified or made explicit but only tacitly assumed as the self-
evident course of events—between the stands taken by the United States in 1944 and 1989,
respectively, see, by the author, ‘Transformation to Rule of Law from No-Law: Societal
Contexture of the Democratic Transition in Central and Eastern Europe’ Connecticut Journal
of International Law 8 (Spring 1993) 2, pp. 487–505 and 487–593, revised as ‘The Building
up of a Rule of Law Structure on the Ruins of a Regime Based upon the Denial of Law in
Central Europe’ in Law at the Turn of the Twentieth Century International Conference
Thessaloniki 1993, ed. L. E. Kotsiris (Thessaloniki: Sakkoulas 1994), pp. 213–233 &
‘Complexity of the Challenge Facing Central and Eastern Europe’ [introduction to Part V on
»Transition to the Rule of Law«] in European Legal Cultures ed. Volkmar Gessner, Armin
Hoeland & Csaba Varga (Aldershot, Brookfield USA, Singapore, Sydney: Dartmouth 1996),
pp. 415–424 [Tempus Textbook Series on European Law and European Legal Cultures I].

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(a) Unpreparedness All we have proved to be mentally


unprepared for recognising and proposing a solution to basic
dilemmas. Our usual approaches are mostly unilateral and biased,
satisfied by occurrences of partial formal truth. Imagining the
prevailing totality as a self-reproducing and self-balancing
functioning whole is to fall out of our sight. For instance, from the
perspective of human rights, we do not hold adequate solutions for
the protection of natives in the Baltic region against the hordes of
Soviet subjects, devised at the time to settle there in order to
overcome and finally de-nationalise them. Or: demolishing state
borders and making them transcendable is a noble gesture indeed,
yet qualifies as an inconsiderate step if in the meantime there is no
legal way to implant a filter setting barriers to migration, and to
keep the marginalised mob of the neighbouring former Soviet
empire (decomposed and fallen apart into next-to-criminal gangs)
away from own territory. Or: it is a feature of laudably high spirit
that Hungary has abolished capital punishment, de-penalised
economic crimes, and transferred the disclosure of the facts and
sources of personal enrichment to the legally safe and sacro-saint
private sphere. Yet, all this will mainly have damaging impact if not
followed by a prison reform, capable of effective prevention,
through punishing deeds that usually result from the gaps and
weaknesses of legal regulation in transition, that is, degeneration
into pillage, money laundering, Mafia crime, and black economy.
This line of thought can be continued for long. Most eminently, the
proportions in the relationship and priorities between the
individual and the public, as well as rights and duties, are not clear
either. However, the panacea for the degeneration caused by past
dictatorship is surely not degeneration into the opposite extremity,
i.e., anarchy. Finally, one can realise how much present debates are
characterised by a disintegrated equilibrium. For usual reactions
by intellectuals in the region seem to perceive it as an exclusively
old-new threat if individual concerns are not given exclusive
preference but are weighed in the light of tasks the nation may
need to define for the survival of the community. Public debates on
the freedom of press, privacy, “otherness” relevant to public morals
(e.g., sexual behaviour), national security, public order, facing the

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past crimes, taxation, effectiveness of and policing by the police, or


government collection of data and official statistics—all these can
therefore easily prove abortive under such conditions.

(b) Utopianism Our post-modern way of thinking is


pervaded by the blindness and miracle-expectation of utopianisms
when we resort to a sheer issuing of laws instead of the often bitter
(but unavoidable) trouble of the care for carrying out radical
reforms. We dedicate our efforts to texts (which already LENIN
considered, if left alone, hardly more than an “aerial move”), not
to genuine action. Taking an example from biology: although
skeleton determines bodily structure, it cannot replace the
complexity of our living self. For the same reason, we cannot
simplify law to a randomly amassed aggregate of rules (or,
continuing the above example, to somehow putting the skeleton
together by cartilages, joints and tendons). Moreover, we can
neither consider law as a set of partial units, in which (as in a car-
type) every component is exchange guaranteed. For instance, we
can freely translate foreign laws, yet they will hardly function
properly in a new artificial environment without a proper practice
(organically developed from the given cultural background) behind
them. However, under the present conditions of political transition,
simplified solutions (imposed from above, in a doctrinaire way,
exhausted in declarations, by banning practical doubts about the
prospects of their implantation)—no matter if they originate from
international obligation or a domestic vote—can only be carried
out to the detriment of public interest. Since, the improvement and
constant control (with extension or restriction) in establishing
practice with a balanced use of rights can only be afforded
subsequently, after experience of enforcement is thoroughly
considered in the course of long debates, through the assessment of
jurisprudence in the light of statistical data. From the very act of
putting together and/or transplanting alien substances we can
hardly obtain a liveable law. Just as the constitutional status of the
Queen of England is not constructed from some random laws but
has for long been crystallised by a series of conventions in
tradition, which on their turn have been drawn from historical

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experience concluding debates by reaching compromise solutions,


neither legal reform can be the exclusive concern of some conscript
fathers who may vote according to political stands, but the concern
of the whole society. Without traditions and conventions, practices
and improvements exclusively suitable to give meaning and life to
the rudimentary structure of a statutory skeleton, also legal reform
is faced with the chance, if not backed by society, to turn easily
inside-out. For instance, the freedom of press may give way to
either anarchy or monopoly, the weak regulation to clumsiness
discrediting any policing, and a deficient legal background to
spasmodic undertaking only characteristic of early, primitive forms
of capitalism.

(c) BIBÓ-syndrome In want of something better, a particular


behaviour (nowadays becoming more and more typical in the
region) is called BIBÓ-syndrome. Namely, instead of creative
thinking, this behaviour imitates, sanctions and rigidly executes
recipes, be they time-honoured at some place or not, by accepting
them as the only feasible means. BIBÓ-syndrome is today’s
simplifying continuation of a practice rooted in historical
experience, by the way tragic at its time. In our case, this fetishises
Western clichés and everyday Atlantic routine on constitutional
democracy and the rule of law, by diminishing own initiatives,
imagination, and active problem-solving. For before the 1948
conclusion of the Peace Treaty in Paris, ISTVÁN BIBÓ’s writings12 had
this only suggestion for Hungary under Soviet occupation: in the
terrible duel between “Socialism” and “Capitalism”, the primary

12 ISTVÁN BIBÓ (1911–1979), once a philosopher of law, soon became a political and
historical analyst, whose debate with the then STALINist GEORGE LUKÁCS on democracy in
1948 ended for him in complete dismissal of any positions. For his oeuvre, cf. Die Schule von
Szeged Rechtsphilosophische Aufsätze von István Bibó, József Szabó und Tibor Vas, ed
Csaba Varga (Budapest: Szent István Kiadó 2006), »István Bibó«, pp. 9–77 [Philosophiae
Iuris], on the one hand, and by István Bibó, Democracy, Revolution, Self-Determination
Selected Writings, ed. Károly Nagy, trans. András Boros-Kazai (New York: Columbia
University Press 1991) xiii + 570 pp. [East European Monographs CCCXVII / Atlantic
Studies on Society in Change 69] as well as Die Miserie der osteuropäische Kleinstaaterei
trans. Béla Rásky (Franfurt am Main: Neue Kritik 1992) 140 pp. & Misère des petits États
d’Europe de l’Est trans. György Kassai (Paris: L’Harmattan 1986, ²1993) 462 pp., on the
other.

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task of the nation is not to opt for either alternative or to commit


herself for a Third Road, but to do her best in implanting political
culture, and drafting political programmes after thorough
considerations, so that a choice can be quietly done when timely.13
BIBÓ could draw this only conclusion from the Communist push for
power, and so could the next generation now from the actual horrors
of the Communist rule. And the memory of all this may have been
burnt into the conscience of the following generation to guide their
moral responsibility now, when the time has come—by setting the
rules of this new socio-political game—to formulate the exclusive
primacy of constitutional democracy and the rule of law. Obviously,
the job cannot be fulfilled by merely servile copying or making a
fetish out of any foreign pattern. That would rather prove spiritual
poverty, characteristic of those having doubts, who compensate
them by narrowing (while rigidifying) the path of their original
thought. In fact, nobody wants fetishisation, and it would also be
unworthy of human conditions. On the other hand, we know about
the Rule of Law that it is merely an ideal: developed historically in
our European legal and political culture, it lies basically in the
truth won for that all technicalities notwithstanding, the dignity of
the human person will eventually be respected in the world of law.
Thus, it implies tradition open towards the future—instead of
anything established, completed, closed, and codified as to its
means. It assumes our inclination towards continuously re-
considering and re-starting issues, therefore it is not to be confused
with the enervation of being absorbed by someone else’s far-away
daily routine. For, Rule of Law itself is a struggle: with stages,
experiments, results, all which have to be recurrently re-achieved,
and responses that defy fewer ambiguities than “inasmuch as”,
“more or less”, “from this or that perspective”. Except for
borderline cases, rare in practice, the very nature of the Rule of Law
resists to answers reducible to an exclusive ”yes” or “no”,
simplifications of a MANIchean dichotomy. For the world of law is
formalised. Legal adjudication can only be given in the well-
defined unconditional formulas of either “yes” or “no” (e.g.:

13 For the first reconstruction of BIBÓ’s thought in the above sense, see Zsolt Papp
‘Társadalomelemzés és politika’ [Social analysis and criticism] Kritika 1980/11, pp. 11–15.

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“guilty / not guilty”, “did steal / did not steal”, “qualifies / does not
qualify as the seizure or stealing of property”), including the entire
conceptual class so qualified. This is why legal disputes can only
be settled by a valid decision (i.e., a final, procedurally irrevocable
response, resulting in res adiudicata), and not by abstract
reasoning. Therefore, such undeserved and self-destructing
situations may come about in the sphere of strict legality [summum
ius, summa iniuria] in terms of which, for instance, a concrete
proposal for avoiding bankruptcy of the entire national economy
may qualify unconstitutional within the rather limited perspective
of the law, while the same law has no word against the actual
declaration of bankruptcy: against an outcome when the
government, getting tired of the failures of transition management,
is finally to give up and actually lead the country into bankruptcy.
It is the unavoidable formalism in law that requires the balance
when processing cases in a humane manner, with a touch of
communitarianism, and without considering the letter of the law a
fetish; for not even such dilemma should be formulated in such
strainedness. Or, in ultimate analysis, the Rule of Law is a culture
of reconciliation amongst conflicting values, public and individual
interests, all in terms of human dignity. In conclusion, it ought to
serve own responsible initiatives in solving problems in harmony
with tradition, instead of being simply referred to as a pretext to
despise public affairs by using it as a hammer, or to block attempts
against headwind in the cheapest (but apparently noble) way.

(d) Between the West – and the West We live in an exceptional


but strange era, now that we have come to finally face our own
problems after the Soviet empire collapsed. Looking out from our
Moscow-imposed misery, so far we have found a standard in the
West, a pattern for our future evolvement, by hoping some strength
therefrom with the promise of a moral backing. Now, with the Iron
Curtain fallen, we are suddenly taken aback by the full sight
revealing itself before our eyes. We can feel it more and more
deeply even in our everyday lives now what that we have received
(mainly through American mediation) as a ready-made recipe for a
post-modern understanding of the world will actually mean under

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present Hungarian conditions. Among others, the “deconstruction”


of the elementary units forming the tissues of any society, the
liberalising “liberation” from all community-related ties, the sheer
presumption of the existence of an “invisible hand” in the chaos
resulting from the complete lack of any regulation: all these being
asserted as unquestionable truths, in which the only absolute can
be the negation of anything absolute. What is left on the scene
then? Various kinds of minority and otherness: feminism,
homosexuality, lesbianism, sects, refusal of military service, the
cult of whatever types of watch-organisations with fragmented
vested interests, and so on.
Although, thanks to Central European archaism, we are still
aware of the old knowledge: this is just the cult of fragmentation—
instead of the respect for the whole, and without realising that law
preconditions a community framework with well-balanced interests
in which deprivals are continuously counter-balanced and
disintegrating pretensions rejected. All in all, only respect for the
community can elevate growing liberalisation into anything more
than the sheer phraseology of nihilism. For whatever kind of
liberalising efforts we strive after, its justification can only be
drawn from the given historical contexture. For instance, the
appalling heritage from the past in the United States may justify
positive discrimination as the recompensation to previous racial
hatred and segregation, subjugation of women, or violence
pervading personal relationships. Therefore, sheer imitation
without self-justifying historical analogies could only be a
damaging fad.
For law is based on justice, preconditioning (even in its most
formal understanding14) the essentially similar treatment of
essentially similar situations. To conceptualise them, law has to
operate through conceptual inclusion and exclusion. When issuing
a norm, we aim at deviance, and deviant means being opposed to—

14 According to the already classical stand of Chaïm Perelman—Justice et raison (Bruxelles:


Presses Universitaires de Bruxelles 1963), pp. 11–26 [Université Libre de Bruxelles:
Travaux de la Faculté des Philosophie et Lettres XXV], reviewed by the present author in
Állam- és Jogtudomány X (1969) 3, pp. 441–443—, justice can only be formal and therefore
identical with the demand to equality.

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by defying—something. Whereas “otherness”, according to any


acceptable meaning, is not negation but cultural variety—among
sets of thoughts, ideals and behaviours, the individual components
of which are not inferior to but less widespread or more insecure
than the others.

4. Brave New Start with Tradition Left Behind


Too much ambition in legal borrowing is not only dangerous
but risky as well. In history, most of the experiments have
eventually been rejected as “fantasy-laws”15 or become fully
integrated into local contexture centuries after.
What is specific in our transition-process after all? It is
mostly perhaps that (a) it has exerted an exclusively liberalising
effect so far, (b) in want of established conventions, its reforming
purport could only materialise through causing damage to the
community, while (c) direct interference with local social processes
was mainly partial, conducted for own sake, without being placed
into any systematic overall plan with communitarian dimensions.
What can be found in the background of all this? First of all,
a rather limited understanding of the Rule of Law, conceptualised
as if it were the embodiment of the Ten Commandments, once given
to Moses as carved into a piece of stone on the Mount of Sinai. Yet,
Rule of Law is not a ready-made end-product but a lasting
endeavour. It is not a godly gift granted for once and for all but
continuous cultural effort at serving human dignity also by law. It
is neither finished, nor rounded. It reflects challenges to which
nations with classical history happened to afford tentative answers
under by-gone conditions in response to their own time and
conditions. Therefore in our search for the Rule of Law, we can only
find past local initiatives, particular to the needs felt at their time
in England, North America, the Netherlands, France, Germany or
Italy, from behind the adorning veal of subsequent abstraction and

15 ‘lois de phantasie’, as used by Jacques Vanderlinden in his Introduction au droit de


l’Éthiopie moderne (Paris: Librarie Générale de Droit et de Jurispruence 1971) 386 pp.
[Bibliothèque africaine et malgache 10].

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conceptual generalisation. That part of the rule of law and human


rights which later on has become integrated into one common body
with compulsory force is now international law. All this is to say
that there is no other rule of law than the one characterisable
exclusively by sheer tradition, endeavour, and partial results—on
behalf of nations that tried to answer own questions on their own
way within the framework of own particular experience. Therefore,
when talking about rule of law we do generalise particularities
which have been asserted in given space and time. As it is known,
the idea of the Rule of Law has once been formulated in Western
Europe under conditions differing from the ones now in Central and
Eastern Europe. Gaplessly organic and balanced development,
characteristic of the West, assisted the rising bourgeois middle
classes in occupying a position favourable to shaping society
through building those institutions of societas civil which could
become the motive power of social dynamics with continuous
internal development. Checks and balances were thereby created,
with agents of initiation from within. For Rule of Law does not
tolerate revolutionary endeavours, radical change or intention of
disruption. It is not revolution but evolution that stands behind as
subtle adjustment, therefore everyday compromises are
characteristic of it. This is why it is high time to us to implant the
rules of the actual social and political game so that such an
outcome can be achieved. In order to do it, we need to clarify who
we are, where we stand, what our gifts are, and what we want—in
both the short and the long run. Starting from our own culture,
tradition and experience in how to resolve and settle conflicts, we
can only determine subsequently what and how we should learn
and what we need to continue. As to those questions unanswered so
far (which happened not to be risen or not in a comparable way in
the historical cultures once having patterned the Rule of Law), we
obviously have to search for answers within the general ethos and
framework of what is known to be the varying cultures of the Rule
of Law.16

16 Cf., as a cry for an all-societal care for building up a proper culture in the background,
e.g., Драма российского закона [Drama of the Russian law] ed. В. П. Казимирчук
(Moscow: Юридического Книга 1996) 143 pp.; Ewa Łętowska & Janusz Łętowski Poland

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‘Democracy’, ‘constitutionalism’, and ‘rule of law’—all these


are words in themselves, that is, indications for a culture
incorporated by historical answers, born locally at given particular
place and time. This culture is continuous as suitable to serve
human dignity also under modern and post-modern conditions.
Therefore it demands value-assertion, devotion as well as modesty,
by promising also long-term application under changing
conditions. It can never be finished. Each and every new answer to
it gives a new life to it. Instead—and, properly speaking, in lack—
of any casuistics by a codified set of rules, it offers a cultural
framework within which, when faced with new challenges, we can
safely build on grounds inspired by its own tradition. So, it counts
on active social participation. If we prove to be short of ideas and
resort to servile copying, it is only ourselves that can be blamed.
For in own initiatives, too, we have to rely upon own efforts and
creative innovation.

Towards to the Rule of Law (Warsaw: Wydawnictwo Naukowe Scholar 1996) 176 pp.
[Institute of Legal Studies of the Polish Academy of Sciences]; Kiáltás gyakorlatiasságért a
jogállami átmenetben [Cry for practicality in the transition to rule of law] ed. Csaba Varga
(Budapest: [AKAPrint] 1998) 122 pp. [A Windsor Klub könyvei II]. For a marked contrast,
cf. also Jacek Kurczewski The Resurrection of Rights in Poland (Oxford: Clarendon Press
1993) xxi + 462 pp. [Oxford Socio-legal Studies].

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LEGAL SCHOLARSHIP AT THE


THRESHOLD OF A NEW
MILLENNIUM
in the Central and
Eastern European Region*
In a rather sensible position to start lecturing, this very
presentation will focus on my embarrassment at the realisation that
Central and Eastern Europe is in the process of dramatic change
with Western Europe and the entire Atlantic hemisphere in the
course of more dramatic a change. Obviously, there is a latent
contradiction in such an embarrassment by simultaneously
ascertaining that both parts of Europe run now one of the most
promising success stories of their overall history. As it will be
revealed in the paper, however, both are running their courses as
permeated by universalism, a-historicism and over-rationalism, all
standing for the growing sense of groundlessness and rootlessness
in their backing cultures, by also negating our best self-defending
conclusion drawn from MARXism as preserved from the time of
Socialism, namely, historicity with respect to particularity. Then,
what will cement and substantiate our future? My tentative answer
within the framework of scholarship will be given in terms of
suggesting to learn from the own past by grounding our theorising
anew again.
*
* Originally drafted as a festive speech at the session organised by the Institute for Legal
Studies of the Hungarian Academy of Sciences on the very first occasion—on 4 November
1997—to commemorate the Day of Hungarian Scholarship. First published in English as
‘Legal Scholarship at the Threshold of a New Millennium (For Transition to Rule of Law in
the Central and Eastern European Region)’ Acta Juridica Hungarica 42 (2001) 3–4, pp.
181–201 & <http://www.ingentaconnect.com/content/klu/ajuh/2001/00000042/F0020003
/00400027>, & in On Different Legal Cultures, Pre-Modern and Modern States, and the
Transition to the Rule of Law in Western and Eastern Europe ed. Werner Krawietz & Csaba
Varga (Berlin: Duncker & Humblot) = Rechtstheorie 33 (2002) 2–4: II. Sonderheft Ungarn,
pp. 515–531, and as ‘Legal Scholarship at the Threshold of a New Millennium’ in
Šiuolaikine filosofija Globalizacijos amius [Contemporary philosophy: age of globalization]
Monografija, red. Jurate Morkuniene (Vilnius: Lietuvos Teises Universitetas 2004), ch. V
para. 3, pp. 287–307.

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(Naivety from the Beginning) It is nearly unavoidable


nowadays to start concluding anything without mentioning the
cardinal facts of the political system change. Thus, some
established claims may come to our minds, such as rule of law,
human rights, pluralist constitutional parliamentary democracy,
and so on. All these are also expressed by the need to re-define
certain directions and subjects of legal scholarship: constitutional
law, in place of ‘law of the state’; public administration, with a more
substantive meaning than sheer ‘state administration’, human
rights, as eventually expressing more serious a care, and so on.1
The balance of Socialist legal scholarship is yet to be drawn
up. Although we in Hungary might not have any reason to be
ashamed of it, still less to reject it—it did its job as it could,
becoming widely known as the exemplary workshop of the Socialist
world, winning the attention of Western scholarship due to the
professionally high level of its monographic elaborations and
conceptual analyses, comparative outlook and sensibility to
history—, yet, the entire range of its offerings were obviously born
within its own medium, that is, within spiritual horizons drawn by
contemporary battles against some Eastern demigods imposed
upon it. No matter how creative Socialist jurisprudence may have
been in adapting to the environment of its time, what it could
display later on, in an entirely new spiritual neighbourhood, might
prove distorted and one-sided. Thus, our legal scholarship yearns
for theoretical foundations, preconditioning reconsiderations, by
extending its interest on politico-philosophical deep structures
within the overall constitutional framework, as substantiated by the
contemporary presumptions and requirements of social sciences.2
Naturally, we could have foreseen this earlier, at a time when no
one would have dreamt about the subsequent collapse of the Soviet
Empire and Western Realpolitik. However, consecutive to the

1 For the variety of aspects and particular features of the transition process in Hungary and
the entire Central and Eastern European region, cf., by the author, Transition to Rule of Law
On the Democratic Transformation in Hungary (Budapest: ELTE Project on “Comparative
Legal Cultures” 1995), 190 pp. [Philosophiae Iuris].
2 As to some pre-modern science-philosophical presuppositions of MARXism as confronted
with the present stand of sciences, cf., by the author, Lectures on the Paradigms of Legal
Thinking (Budapest: Akadémiai Kiadó 1999) 279 pp., especially para. 4.2.1, pp. 118–121
[Philosophiae Iuris].

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changes, a considerable number of previously known facts struck


us as new. For even if we were able to collect deep impressions on
the everyday life of Western societies during repeated visits to their
countries, the objectiveness and sharpness of our sight was still
altered by an unintentional over-optimisation of our enemy’s
enemy. We may confess it today that, although unexpressed, yet we
may have seen them as the embodiment of some ideals or
utopianistic dreams, rather than the living carriers of patterned
practices to be restarted by us in our everyday life practically from
the scratch, in order to be repeatedly reassumed despite daily
failures and hindrances—necessary to beginning from the very
beginning. We were sensible and responsive to the fulfilment of the
values denied to us there and then, instead of perhaps questioning
the principles and ethos behind the apparently pleasant
manifestations of the respective scene newly opened to the visitor,
by inquiring about the sufficiency of their merely formal
implementation or even the danger of their subsequent internal
emptying.
Despite clear warnings,3 we hardly noticed that Western legal
orders which we had respected as the standards of normality were
in the meantime undergoing a change in paradigms with social
processes being growingly channelled towards a juridified path,
while abandoning traditional legal positivism by taking the stand of
a new, militant kind of social engineering, in which the jurist could
take the role of a mediator at the most. At the same time, in the
Western hemisphere the fora and the procedures requiring a
judicial decision multiplied and increasingly became subject to the
merciless rule of supra-national principles, decision-making
bodies and pressure groups, to an extent that the outside observer
might recognise, even in the slightest change of law, the sheer
(internal) enforcement of some (external) pressure.4

3 For the most conspicuous examples, see Roberto Mangabeira Unger Law in Modern Society
Toward a Criticism of Social Theory (New York & London: The Free Press 1976) ix + 309
pp. as well as Philippe Nonet & Philip Selznick Law and Society in Transition Toward
Responsive Law (New York: Harper & Row 1978) vi + 122 pp. [Colophon Books], reviewed
by the present author in ‘Átalakulóban a jog?’ Állam- és Jogtudomány XXIII (1980) 4, pp.
670–680.
4 For an overview of the contradictions emerging from the sectoral over-fulfilment of the
institutional expectations towards the rule of law and leading thereby inexorably to a kind of

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The system change and the gradual recognition of the very


laws that actually govern the events in the outside world came as
two processes mutually supporting one another. For the urge for
overall reconsideration of our actual situation only strengthened
the effects of the realisation of the changes gaining ground in the
outworld and the consequences thereof.
Nevertheless, our foresight5 turned out to be rather limited.
At the dramatic time of transition, we construed our position in the
following way: we are facing a learning process which we are
expected to embark on with open hearts. As to my own stand, I
arrived at a rather shocking and radical conviction according to
which it is not simply a few unproved and unprovable theses from
MARXism as a Socialist legacy that are present to draw us back to
the past but the entire intellectual outworn structure upon which its
approach, ethos, methodology and scientific-philosophical outlook
were based. For each of us can easily deny or neglect any thesis at
will, but the approach and presuppositions underlying MARXism
could hardly be left behind without denying our former intellectual
self or surpassing our previous inclinations.
One can realise now how naive we were to believe so
persistently that the difficulties we had were the only ones.
Although, as soon as we started to breath the same air with the
European and Atlantic world, which let us down some half a
century ago, a different picture began to take shape, far more
complex than our former expectations. By now, the face of the
surrounding brave new world has started slowly to show familiar
features, reminiscent of our surpassed Soviet world: rational
arrogance, enlightened utopianism, world-saving universal
panacea—that is, all-curing patterns reminding of the French 18th
century in the minds and the rule of abstract principles in practice.
practical anarchy, cf., by the author, ‘Rule of Law: Imperfectly Realised, or Perfected without
Realisation’ in the present volume and ‘Önmagát felemelõ ember? Korunk
racionalizmusának dilemmái’ [Man elevating himself? Dilemmas of rationalism in our age]
in Sodródó emberiség [Mankind adrift] ed. Katalin Mezey (Budapest: Széphalom
Könyvmûhely [2000]), pp. 61–93, as well as ‘Rule of Law – At the Crossroads of Challenges’
also in this volume.
5 Cf., by the author, ‘Trumbling Steps of the New Constitutional State: Everyday
Constitutional Process’ & ‘Question Marks of Local Legal Tradition’ in his Transition to Rule
of Law [note 1], pp. 78–89.

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And these are coming to us from the opposite direction this time.
Their omni-present predominance, crushing theoretical arguments
and self-imposing confidence (through a veritable army of experts
and aid-programmes mobilised for us to be “civilised”) can not
only push the relevance of local practical experience once again
into the background but, as a result of continuous pressure, even
the scepticism, compulsory in scholarship, can be silenced for a
while at least as well.6
Only wisdom may suggest that self-confident certainties
often hide deep internal uncertainty. Indeed, nothing else can be
taken for granted under currently changing conditions. For we may
state7 that both our actions and their theoretical backing have for a
decade been pervaded by
(1) intellectual unpreparedness (notwithstanding the
apparent certainty of measures still enforced in practice),
(2) b l i n d n e s s a n d m i r a c l e - ex p e c t a t i o n (through
interventions imposed as a deus ex machina, hardly
becoming the organic part of the overall process),
(3) the so-called B I B Ó - syndrome (that is, the attitude
which, having experienced dictatorship bitterly, approves
spasmodically and uncritically of every principle and
procedure opposed to its gaining ground anew—even if
the present lack of our ability to keep distance cool-
mindedly would actually lead to some sort of practical
anarchy),8 and, finally,

6 From the enriching literature, cf., first of all, Paul H. Brietzke ‘Designing the Legal
Frameworks for Markets in Eastern Europe’ The Transnational Lawyer 7 (1994), pp. 35–63
as well as, by Gianmaria Ajani, ‘La circulation des modèles juridiques dans le droit post-
socialiste’ Revue internationale du Droit comparé 46 (1994), pp. 1087–1105 & ‘By Chance
and Prestige: Legal Transplants in Russia and Eastern Europe’ The American Journal of
Comparative Law XLIII (Winter 1995), pp. 93–117.
7 See, by the author, ‘Radical Change and Unbalance of Law in a Central Europe under the
Rule of Myths, not of Law’ in the present volume.
8 ISTVÁN BIBÓ (1911–1979), philosopher of law and political essayist, was firstly silenced
after the Communists took over in 1948, then imprisoned as the last Secretary of State in
IMRE NAGY’s government on duty when the Soviet invasion reached his office in the
Parliament’s building on 4 November 1956. Cf. his Democracy, Revolution, Self-
Determination Selected Writings, ed. Károly Nagy, trans. András Boros-Kazai (New York:
Columbia University Press 1991) xiii + 578 pp. [East European Monographs 317 & Atlantic
Studies on Society in Change 69].

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(4) the trap of choosing between the West – and


t h e We s t (without any further consideration and
reflection, due to the categorical imposition of quasi-
axiomatic patterns).
The aim is by far not to take an attitude of scepticism
questioning the results (maybe provisional, yet surely influencing
our shifting points for the future) of these processes of accelerated
change. Notwithstanding all these, we ought to understand (through
establishing the fact and thinking its consequences over) that
scholarship fails to fulfil its foremost task, that is, reflection, if it
accepts the unreflected realisation of sheerly imported patterns.
Thus, if a situation arises in which abstract principles, derived by
others under different conditions at some distant time, are granted
continuous priority over local experience and everyday knowledge,
even the relatively best and, indeed, lasting message of all the
humanities (including our past MARXism), namely, historicity
might be betrayed. For no matter how contented we are to have
universal principles declared and accepted, we should not forget
that even the most global ideas with universal principles behind
them were initially born under historically particular conditions to
answer historically particular challenges in practice.9
Therefore, it is high time to put the question: is our
scholarship truly prepared to make a survey of reality? Does it have
the empathy, the ethos of service and the humbleness to speak on
the basis and in the interest of such a survey of reality? Or, is it
conceivable that all our naming and sets of concepts, our entire
thinking and problem-sensibility, moreover, the thought pattern
itself within the framework of which we raise our questions, are—
in terms of methodology—eventually nothing but projections of
Western thinking, that is, as to their origin and evolvement,
products of differing cultures and life-conditions, experience and
ideals, as well as expectations?
Obviously, it would be rather silly to search for any hidden
justification of any opinion in the very process of inquiry. History

9 Cf., by the author, ‘Law and History: On the Historical Approach to Law’ in Historical
Jurisprudence ed. József Szabadfalvy (Budapest: [Osiris] 2000), pp. 280–285 [Philosophiae
Iuris].

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as magister vitae speaks of the obligatory respect for everything


what medieval and modern scholars could suggest for Europe in
their metaphorical explanation on the functioning of both the
universe and human society after the mechanical clockwork had
been invented: ‘brakes’, ‘checks & balances’, ‘demand & supply’,
‘feedback’, and also prudentia. That is, humanely organised life is
composed of nothing but continuous balancing, mutuality, and co-
efficiency.10 This was of course true there and then for God’s world.
Our present problem is different by its structure. In a set in which
each component is evolving individually, their contact being slow
and incidental—well, may we start the description of the whole
from a self-imposing self-characterisation, calling itself (even if
only in a world-economic sense) ‘the centre’, and its environment,
just simply ‘the periphery’? When admitting the facts of the global
village, do we also undertake the gesture of unscrupulously
expanding the centre’s otherwise existing (political and financial,
economic and social) hegemony into a scientific monopoly? I think
that at the time when MARXism was instituted as a substitute
religion in the Central and Eastern European region, our
scholarship fought enough with fake universalisms and uncovered
extrapolations so that now, when new temptations challenge us from
a different direction, we should be able to know how we can fight
them.
Do we own the resources, independence, and strong past so
that when, having to choose between patterns in peripeteic times,
with old conventions already outdated and the new ones not born
yet, we can make the choice with the certainty of a thought
carefully thought through?
Our faltering steps and over-certainties (implying
uncertainty) might make us feel like babies over and over, starting
everything from the scratch under new conditions, without making
use of the experience of past generations and our earlier self. This
can hardly satisfy us, and our scholarly past does not imply this
either. It is only a side effect that a number of former products of

10 See Otto Mayr Authority, Liberty and Automatic Machinery in Early Modern Europe
(Baltimore & London: Johns Hopkins University Press 1986) xviii + 265 pp. Cf. also, by
the author, Lectures on the Paradigms [note 2], para. 2.3.3, pp. 83–97.

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Socialist scholarship, especially legal sociology and ontology,11 will


be subsequently glorified by such a comparison. For in today’s
perspective, they could display a more exalted, responsible and
responsive, rational and satisfying behavioural pattern and
scholarly ethos, sine ira et studio proven in theory—as opposed to
most of the fashionable (i.e., mainstream) ideals of the present era.

If scholarship intends to take part in realising today’s tasks


and aims at participating in defining potentialities in development
including also their day-to-day implementation, some further
considerations should also be taken into account.

1. (The Limits of Law-modernisation) First of all, we must


continue to proceed on on the path of our scholarly past.
Scholarship ought to form opinions only by building on reliable
philosophical grounds, supported by socio-theory and macro-
sociology, taking the historical experience and traditional values of
the own nation into account.
Our scholarship already warned us to be cautious under
Socialist conditions in relation to modernisationist legal reforms. In
its relevant manifestations, it consistently
(a) emphasised the framework-creating nature of the
otherwise prevailing s o c i a l n o r m a t i v i t y and its
primordial role in determining social processes;
(b) put the possibility and demand of organicity (i.e.,
suitability to get interiorised, instead of being imposed

11 As to a legal philosophical foundation, see KÁLMÁN KULCSÁR’s sociological studies on


modernisation through the law as well as the message of GEORGE LUKÁCS’ posthumous
Ontology of the Social Being on the irreversibility of the effects of institutionalised social
acts, on the one hand, and the preservative significance of communitarian memory, on the
other. For the former, cf. Kálmán Kulcsár Modernization and Law (Budapest: Akadémiai
Kiadó 1992) 282 pp., and for the latter, by the present author, The Place of Law in Lukács’
World Concept [1981] (Budapest: Akadémiai Kiadó 1985, reprint 1999) 193 pp., especially
ch. VI as well as ‘Towards the Ontological Foundation of Law (Some Theses on the Basis of
Lukács’ Ontology)’ Rivista Internazionale di Filosofia del Diritto LX (1983) 1, pp. 127–142,
reprinted in his Law and Philosophy Selected Papers in Legal Theory (Budapest: ELTE
Project on “Comparative Legal Cultures” 1994), pp. 375–390 [Philosophiae Iuris].

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upon externally as a mere artefact) at every step in the


limelight;
(c) rejected presuming that elitist actions initiated to
influence the overall social movement (by means of
political stands, legal decisions and press campaigns) can
be plannably effective with lasting effects on the long run.
Therefore, it treated regulatory intervention in law and
through the law as primarily a s y m b o l i c
c o n f i r m a t i o n and sanctioning of the direction
movements otherwise ongoing (organised or spontaneous)
were taking;
(d) warned of the damages caused by any adventurous
(utopianistic, uncovered, unserious or fake-reform) policy
in that they are bound not only to fail but also to
necessarily discredit even the idea of change itself, by
destroying the p r e s t i g e of the state’s legal
instrumentalities. Therefore, as the utmost consequence,
it
(e) kept asserting the priority of a s y s t e m a t i c a l l y
planned, consistent, convincing, pragmatic
and all- comprehensive social programme, as
opposed to the temptations by world-curing intentions,
exhausted in limited elitist group-actions, involving the
risk of sudden pressing forward in alternation with quick
tiring, supported solely by intellectual arguments.

2. (The Need of Scholarly Reconsideration) As a consequence


of the fortunate changes in our conditions, the new undertaking of
Europeanism gives our scholarship a reformatory task in laying
theoretical foundations and providing methodological clarification,
revealing also its hidden presuppositions. Some preparatory work
has already started on the law’s terrain but, being the “first
sparrows”, we may speak of them only as of temporary ones.
Although the goal is not only to reformulate scientific-
philosophical and methodological presuppositions, we have to
critically survey the new results born in the Western world
subsequent to WWII, rethinking their exploitable trends and
filtering them through the tradition inherent in our domestic

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scholarship. We must consider reconstruction from the


philosophical, socio-theoretical, historical and comparative
foundations in both public and private, criminal and economic
laws, involving their respective procedural schemes and even
interstate legal orders, which task must obviously be
complemented by the rebuilding of the entire legal-conceptual
system (from the very bases of law to sectoral legal dogmatics),
never performed before. We must also pay our debts to the
theoretical-legal scholarship of the local past, discontinued and
neglected for more than half a century.12 We have to reconsider the
genuine bases of both Staatslehre and constitutional theory. We
should be able to reformulate the law of interdisciplinary areas,
thus the legally justifiable demands of policing, national security,
national defence, as well as the ways of how to handle with
emergency and exceptional situations. We ought to provide
scholarly backing to practical tasks, for instance, legislation. We
also must reconsider the relationship between law and morality, as
well as the ethics of the legal profession, and other areas in legal
practicing.

12 Cf., from Hungary, e.g., Sándor Loss [et al.] Portrévázlatok a magyar jogbölcseleti
gondolkodás történetébõl [Portrait-sketches from the history of Hungarian legal philosophical
thought] Pulszky, Pikler, Somló, Moór, Horváth, Bibó (Miskolc: Bíbor Kiadó 1995) 310 pp.
[Prudentia Iuris 3]; Bódog Somló Jogbölcsészet [Felix Somló: Juristische Grundlehre, self-
trans. {1917}] ed. Péter Takács (Miskolc: Bíbor Kiadó 1995) 160 pp. [Prudentia Iuris 1];
Felix Somló Schriften zur Rechtsphilosophie ed. Csaba Varga (Budapest: Akadémiai Kiadó
1999) xx + 114 pp. [Philosophiae Iuris]; József Szabadfalvi Moór Gyula Egy XX. századi
magyar jogfilozófus pályaképe [Julius Moór: The oeuvre of a 20th century Hungarian legal
philosopher] (Budapest: Osiris-Századvég 1994) 199 pp. [Jogtörténet]; Julius Moór
Schriften zur Rechtsphilosophie ed. Csaba Varga (Budapest: Szent István Társulat 2006) xxii
+ 485 pp. [Philosophiae Iuris: Excerpta Historica Philosophiae Hungaricae Iuris /
Bibliotheca Iuridica: Opera Classica 3]; by Barna Horváth, A géniusz pere [The trial of the
genius] [1942] 2nd ed. (Budapest: Pallas–Attractor 2003) 264 pp. [Bibliotheca Juridica]
and Az angol jogelmélet [English legal theory] [1943] 2nd ed. (Budapest: Pallas–Attractor
2001) 616 pp. [Bibliotheca Juridica] as well as The Bases of Law [1948] ed. Csaba Varga,
append. István H. Szilágyi (Budapest: Szent István Társulat 2006) liii + 94 pp.
[Philosophiae Iuris: Excerpta Historica Philosophiae Hungaricae Iuris / Jogfilozófiák]; by
István Losonczy, Abriß eines realistischen rechtsphilosophischen Systems [1948] ed. Csaba
Varga (Budapest: Szent István Társulat 2002) 144 pp. [Philosophiae Iuris] & Jogfilozófiai
elõadásainak vázlata [Outlines of lectures in legal philosophy] [1948] ed. Csaba Varga
(Budapest: Szent István Társulat 2002) xvi + 282 pp. [Jogfilozófiák]; Die Schule von Szeged
Rechtsphilosophische Schriften von István Bibó, József Szabó und Tibor Vas, ed. Csaba
Varga (Budapest: Szent István Társulat 2006) 246 pp. [Philosophiae Iuris: Excerpta
Historica Philosophiae Hungaricae].

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3. (Rebuilding the Social Contexture of Law) The general


demand to re-found scholarship cannot make us forget about the
compelling necessity of revealing some timely social problems. For
in a process of system change, some things cease to exist, their
place to be taken by others, but new unbalances are also born as
by-products. The one-sided and distorted things of Socialism are
thereby getting replaced by other one-sided and distorted outcomes.
The foundational principles of community organisation
(with keywords in Western laws such as ‘public interest’, ‘public
order’, ‘public security’, as well as ‘national security’ and ‘national
defence’) have all been shaken and finally emptied by political
and media intellectuals, moreover, by a widening strata of
population as well, for they can hardly offer a call-word any longer
if they degenerate to depend merely on opinion and personal
preference. The rich Western literature expressing communitarian
concerns and assertion of interests13 has had almost no echo in our
part of the world whatsoever.
The previous balance between rights and duties has
been broken. The law of the Western hemisphere has recently been
deprived of its moral support. The political elite, entrepreneurs,
tax-payers, minorities conscious only in demanding, furthermore,
even criminals remember only the pieces of regulation that meet
their particular interests. Shamefully, neither lawmakers nor law-
administrators do support the overall achievement of law and order
but, following some prevailing trends, they concentrate on
detached elements. There is no extensive social policy, nor a
uniform legal policy. National legal protection and interest
safeguarding activity do not consider it as own task to assume
these. Furthermore, press publicism, substituting the scholarship
numb in these matters, usually strengthens the tendencies of
disintegration without providing theoretical explanation.
13 See, e.g., as a classic Hungarian foundation born in emigration, by Vera Bolgár, ‘The
Public Interest: A Jurisprudential and Comparative Overview of the Symposium on
Fundamental Concepts of Public Law’ Journal of Public Law 12 (1963) 1, pp. 13–52,
‘L’intérèt général dans la théorie et dans la pratique’ Revue internationale de droit comparé
XVII (1965) 2, pp. 329–363, as well as ‘The Concept of Public Welfare: An Historical-
comparative Essay’ The American Journal of Comparative Law 8 (1959) 1, pp. 44–71, ‘The
Magic of Property and Public Welfare’ Inter-American Law Review II (1960), pp. 283–316
and ‘The Magic of Freedom’ in XXth Century Comparative and Conflicts Law Legal Essays in
Honor of Hessel E. Yntema (Leyden: Sythoff 1961), pp. 453–462.

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The idea of human rights, once created as an ideology to


restrict arbitrary power by setting limits to authoritative action, has,
through their extensive positivation, turned into a multi-faceted
and multi-functional weapon, under the banner of which
individuals’ battles against each other or the state (by this time
made a public enemy by these fighting groups) can be fought
successfully. At the time of its conception, the idea of human rights
had served for social integration through raising the oppressed, but
today one can already use it also for disintegration and self-
deconstruction. At a time when rights were scarce, scholarship in
criticism of totalitarianism was rather busy to condemn the alleged
over-assertion and abuse of rights. At present times, built upon the
extension and rather aggressive assertion of abstract constitutional
principles (taken in short-cut as rights), legal scholarship keeps on
stubbornly silent (despite the fact that the principle of summum
ius, summa iniuria was, already back in ancient times, used to
emphasise the virtue of soundness).14

4. (Following Alien Patterns) In the meantime, the


contradiction wedging Socialism from inside was replaced by
another contradiction wedging it again from inside, and this is
nonetheless problematic.
Up to the nearest past, in Socialism, according to its official
ideology, jurisprudence was still dominated by rule -positivism,
with the rule of brute facts only complementing it. Accordingly—
and reminding somewhat of the dual-structure institutionalisation
of law and order under the regime of National Socialism15—, the
enforcement of own interests could go on freely (with brutal force,
through unlawful interference with or even by silencing the law),
while in neutral areas of mass application the petty-minded rule of
regulations prevailed. In contrast, today’s worldwide practice is
dominated by abstract principles, somewhat balanced out by
14 Recognising the destructive effects of the boundless yearn for justice is one of the basic
features of early legal cultures. For the anthropological treatment of shalom in Jewish and
Islamic legal cultures as well as of the Chinese and Japanese ideals of law, including
Michael Kohlhaas’ story by HEINRICH VON KLEIST, cf., by the author, Lectures on the
Paradigms [note 2], para. 2.3.1.8, especially at pp. 169 et seq.
15 Cf. Ernst Fraenkel The Dual State A Contribution to the Theory of Dictatorship, trans. E.
A. Shils (New York: Oxford University Press 1941) xvi + 248 pp.

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the rule of facts.16 For law has come to overwhelming


predominance, becoming the mastering power of this entire
autonomous social sub-system. Yet, it became emptied of moral
support and sterilised into a sheerly procedural pattern, offering
nothing but a juridified framework for the individuals’ free
competition and subordination games. The result is some sort of
anarchy under the cover of all-encompassing rationalisation.17
Freely available rights can now easily be torn to pieces and
scattered in all directions by those most capable of self-assertion.
Both avoiding and abusing the law have turned into a pattern
rewarded by society, without limits as to its misuse or over-use. No
scholarly voice speaks of the ones who have broken the law and
gain rights notwithstanding, for instance, by humiliating repeatedly
their past victims through the privileges the new rule-of-law
conditions grant to them by reinforcing the criminal regime’s
statutory limitations and, thereby, the legality of past
totalitarianism (as the sine qua non of a so called ‘constitutional’
criminal law construed by Hungarian constitutional justices).18
“Nobody can profit from his wrong!”—the legal maxim once
commonly accepted during the “dark age” of Europe seems to be
already doomed to the trash-bin by new conditions.
In Socialism, at least the regulation was somewhat own: the
product of the own Parliament, the expression of the own autocracy.
Ever since there has been a flood of new fashion products,
invented by others some other time, under some other conditions in

16 Cf., by the author, ‘Meeting Points between the Traditions of English–American Common
Law and Continental-French Civil Law (Developments and Experience of Postmodernity in
Canada)’ Acta Juridica Hungarica 44 (2003) 1–2, pp. 21–44 & <http://www.akademiai.
com/content/x39m7w437134167l/?p=056215b52c56447c8f9631a8d8baada3&pi=1> &
<http://www.akademiai.com/content/x39m7w437134167l/fulltext.pdf>.
17 Cf., e.g., by Pierre Schlag, Laying Down the Law Mysticism, Fetishism, and the American
Legal Mind (New York: The New York University Press 1996) x + 195 pp. and The
Enchantment of Reason (Durham: Duke University Press 1998) 176 pp., as well as P. F.
Campos Jurismania The Madness of American Law (New York & Oxford: Oxford University
Press 1998) xi + 198 pp., reviewed by the present author as ‘Joguralom? Jogmánia?
Ésszerûség és anarchia határmezsgyéjén Amerikában’ [Rule of law? mania of law? the
encounter of rationality and anarchy in America] Valóság XLV (2002) 9, pp. 1–10 &
<http://www.valosagonline.hu/index.php?oldal=cikk&cazon=326&lap=0>.
18 Cf. Coming to Terms with the Past under the Rule of Law The German and the Czech
Models, ed. Csaba Varga (Budapest 1994) xxvii + 178 pp. [Windsor Klub könyvei II].

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another environment, yet imposed upon us ready-made, without


any adaptation whatsoever.
We must be aware that there has always been legal
transplantation, and what we are concerned about today is only the
silence of scholarship, maintaining the illusion of not encountering
any problems. What is added to it today in our respective regions
is a loss of conventions, with a process of self-emptying. For
changes have occurred so unexpectedly and stormily, and
happened without any commonality in action and conviction, that
they could neither generate any organic process, nor build out
proper foundations nor be supported by established principles of
organisation.
Therefore, it is no surprise if no social order is created
either from isolated actions running against each other, mutually
weakening or neutralising each other’s effects—not becoming an
organic entity as a common order of values embodied by coherent
practice (beyond meeting the requirements of one single formal
procedural rule, namely, all of them being issued by a pluralist
constitutional parliamentary democracy)—, or from various
manifestations of the law (statutes, judicial decisions, local
governmental decisions, commissioners’ standpoints, ombudsman
opinions, or procedures lost in the maze of endless processual
relevancies), pushed through by Parliament debates and outside
pressure. If law-enforcement is not secure and foreseeable, the
outcome can only be practical anarchy under the aegis of an
alleged rule of law.
Obviously, these are all professional issues: questions of the
unity of social and legal order, of legal coherence19 and, at the same
time (and this makes it particularly interesting here and now from
a theoretical point of view), ones of conventionalisation as well.
Nevertheless, researches in legal sociology, philosophy and
methodology have supported it clearly even in Socialist times that
(a) the relative independence of law can only be asserted
with the previous acceptance of the universal and

19 Cf., e.g., Kálmán Kulcsár ‘A konzisztencia problémája a jogi rendszerben’ [The problem
of consistency in the legal system] in his Gazdaság – társadalom – jog [Economics, society,
law] (Budapest: Közgazdasági és Jogi Könyvkiadó 1982), pp. 123–139.

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homogeneous applicability of its technicality.20 Filling it


with any contents or actually making use of it can only be
done on the exclusive ground of established social
practice as part of the realm of general social values
and conceptualisation, sensibility and tradition, culture
and learned abilities, thus sharing somewhat its fate.21
Therefore,
(b) in the medium of the social normativity prevailing anyhow
in the last resort, the official sources of the law as its
most spectacular components are nothing more than tips
of icebergs, which can only indicate any reasonable
(interpretable) direction together with further and mostly
informal components of legal functioning. Legal
professionals’ morals, ethos, willingness and skill to
work, professional style, public conviction built upon
prevailing doctrines, and the ways to proceed on, if at all,
within the framework of reasonable and officially
acceptable procedure(s)—well, all these may crucially
shape practice which, according to its underlying

20 This is equivalent to the law’s autopoietic self-reproduction, that is, to the


binary response of ‘lawful’ and ‘unlawful’ or the bipolar formalism of exclusive options
between ‘yes’ and ‘no’ (which I have once described as the MANIchean negation of dialectic).
Cf., for the former, Niklas Luhmann ‘The Coding of the Legal System’ (Florence: European
University Institute 1985) 63 pp. [EUI Colloquium Papers, Doc. IUE 342/85, Col. 94] as
well as, by the present author, ‘Judicial Reproduction of the Law in an Autopoietical
System?’ [abstract] in Law, Culture, Science and Technology In Furtherance of Cross-cultural
Understanding (Kobe 1987), pp. 200–202, and [text] in Technischer Imperativ und
Legitimationskrise des Rechts ed. Werner Krawietz, Antonio A. Martino & Kenneth I.
Winston (Berlin: Duncker & Humblot 1991), pp. 305–313 [Rechtstheorie, Beiheft 11] and
in the author’s Theory of the Judicial Process The Establishment of Facts [1992] (Budapest:
Akadémiai Kiadó 1995) 193 p., especially para. 5.4.1 at pp. 157–161, and, for the latter, by
the author, ‘Legal Logic and the Internal Contradiction of Law’ in Informationstechnik in der
juristischen Realität Aktuelle Fragen zur Rechtsinformatik 2004, ed. Erich Schweighofer,
Doris Liebwald, Günther Kreuzbauer & Thomas Menzel (Wien: Verlag Österreich 2004), pp.
49–56 [Schriftenreihe Rechtsinformatik 9].
21 Cf., by the author, ‘Comparative Legal Cultures: Attempts at Conceptualisation’ Acta
Juridica Hungarica 38 (1997) 1–2, pp. 53–63—in its first version as a comment in
Changing Legal Cultures ed. Johannes Feest & Erhard Blankenburg (Oñati: International
Institute for the Sociology of Law 1997), pp. 207–217 [Oñati Pre-publications–2]—, and,
for a wider selection of examples, European Legal Cultures ed. Volkmar Gessner, Armin
Hoeland & Csaba Varga (Aldershot, Brookfield USA, Singapore, Sydney: Dartmouth 1996)
xviii + 567 pp. [Tempus Textbook Series on European Law and European Legal Cultures I].

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ideology, can be established exclusively from and as


materialisation of the law’s official sources.22 As a result,
(c) despite the fact that the casual steps of legislation give a
boost to legal development, the medium and contexture in
which law gets applied in practice is still composed from
a huge mass of conventionalisations. Commonly
shared behaviour assisting to the law’s actual
implementation, formation of tacit agreements and
actually enforced customary ways providing an organising
force even in lack of laws, as well as the legitimising
effect of professional and social consent standing behind
them—all these allow us to state: there is, for instance,
constitution in England, although not a written one, and
the legal status of the Queen is clear, although not
posited; and, for the same reason, we may realise that, for
instance, within the same formal setting, legal practice
has undergone a change in direction (let us say, in case of
divorce unequally for the parental genders).23
Consequently,
(d) when this substrate is hurt and turns to be incapable of
fulfilling its conventionalising job to standardise everyday

22 Cf., on the logical necessity of implied presuppositions, by Leszek Nowak, Próba


metodologicznej charakterystyki prawoznawstwa [Methodological essay on the nature of legal
knowledge] (Poznań 1968) 205 pp. [Uniwersytet im. Adama Mickiewicza w Poznańiu —
Prace wydziału prawa 38] and ‘De la rationalité du législateur comme élément de
l’interprétation juridique’ in Études de logique juridique III, publ. Chaïm Perelman
(Brussels: Bruylant 1969), pp. 65–86 [Centre Nationale de Recherches de Logique]; on
interrelations between the social and the legal, Kálmán Kulcsár Jogszociológia [Legal
sociology] (Budapest: Kulturtrade 1997), ch. VII, pp. 259–287, as well as, by the present
author, ‘Logic of Law and Judicial Activity: A Gap between Ideals, Reality, and Future
Perspectives’ in Legal Development and Comparative Law ed. Zoltán Péteri & Vanda Lamm
(Budapest: Akadémiai Kiadó 1981), pp. 45–76 (and also in his Law and Philosophy [note
11], pp. 257–288).
23 Regarding its ultimate effects at deteriorating the law’s own prestige, the situation is the
same if constraining considerations taken from the outside are used for competing with and
also eventually replacing the law as, for instance, the variable yet strictly enforced set of
requirements (restricting the freedom of thought, speech and education) of political
correctness does in the disciplinary practice of the American orders of profession (in
media, academia and universitas, publishing and public services). Cf., e.g., Paul Hollander
‘Political Correctness is Alive and well on Campus Near You’ Washington Times (December
28, 1993), p. A19.

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legal practice, chaotic situations may emerge. In a


process of system change, into which some atomised
pieces of legislation (eventually, encouraged by some
external pattern without any prior domestic precedent,
experience or training) are being wedged as deus ex
machina gestures, a d i v i d e d s o c i a l s u b s t r a t e ,
missing any definite direction and with no genuine
standardising support may be the outcome, a conflux that
can hardly lead to a better result. Eventually,
(e) some sort of loss of direction, temporarily becoming
constant, is bound to end the process, just as the
transitory legitimisation of z i g z a g s arising from
unregulated individual and group influences, capable of
controlling and exploiting unclear situations. Although as
a side-effect, but through the accessory dysfunctions
undoubtedly asserting themselves in the long run, all of
this (even without any concrete grievances) can preserve
and actually forecast the destruction of the law’s
own ethos, the shattering of confidence and, as the only
viable response from wide strata of the population, an
option for either the avoidance of law or the transposition
of popular hopes into a new reforming movement to be
launched by the central power with the necessary re-
emergence of a new fetish of statism, once believed to
have been surpassed for ever.

5. (Want for Clarification) In Socialism, legal thinking has


done a lot to make the institutional functioning of the state and law
more humane and liveable within the given frameworks, at the
same time trying to make it serve some common social goals. How
much does our scholarship assume of the tasks accumulated ever
since?
Under new circumstances, the clarification of the necessary
preconditions has arrived at recording just impressions in
publicism, as if investigation into fundamental issues had stopped
at the analyses carried out under Socialism. At present, there are
no answers either to the limits of transplantability of legal

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technicalities or to the natural barriers to the universalisation of


ideas and techniques.24
In the meantime, foreign literature is flourishing,
remembering the unsuccessful American export of law to Germany
after WWII,25 of the shameful billions of dollars committed to Latin
America (sacrificing them to social modernisation undertaken in
the name of “scientific” social theory),26 or arguing with the World
Bank in terms of abstract rationality:27 putting questions,
expressing doubts, giving voice to the unchanged and
unchangeable validity of some ancient truths, furthermore,
providing us with new realisations. Well, in these days, when
international legal export is at its peak, and on the ruins of
collapsed socialisms, salesmen and tradesmen of the law’s
technicality are circulating as self-nominee experts, it seems that
the scholarship in the target countries remain stubbornly silent and
shyly turn its respective heads. Is it possible that right in these
moments its students feel the urge to live or rejoice over their total
academic freedom, uncontrollable by anyone?
The caravan of legal renovation is following its own route
ever since, even though none of us knows what balms to use when
and under which conditions. How can we establish the conditions
of well-balanced functioning? What does historicity mean in
today’s post-modernity? What are the features of the global village?
What can theoretically justify a process in which patterns born
24 The first post-socialist ombudsman Ewa Łętowska (co-authoring with Janus Łętowski)
warns us—under the heading of ‘The State of Law Is Not a Gift’ in their Poland Towards to
the Rule of Law (Warsaw: Wydawnictwo Naukowe Scholar 1996) on p. 10—that “The belief
that in order to change the world one must first and foremost change regulations and then
the rest will automatically take care of itself is an expression of similar thinking based on a
belief in the magical force of the law. We have a state of law in the constitution, and
so we irrevocably will also have one in life. Nothing of the kind... Even the program for
creating a real state of law in Poland in the fullest possible form still has not been drawn up,
while its implementation does not have to end in success.”
25 Cf., e.g., Armin Höland ‘Évolution du droit en Europe Centrale et Orientale: Assiste-t-
on à une renaissance du »Law and Development«?’ Droit et Société (1993), No. 25, pp.
467–488.
26 Cf., e.g., James A. Gardner Legal Imperialism American Lawyers and Foreign Aid in
Latin America (Madison: The University of Wisconsin Press 1980) xii + 401 pp.
27 Cf., e.g., Ugo Mattei Introducing Legal Change Problems and Perspectives in Less
Developed Countries [manuscript of an address to World Bank Workshop on Legal Reform
on 14 April 1997] (Berkeley & Trento 1997) 19 pp.

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under historically particular conditions and in specific places are


recorded in the first round, then the results are exported as a
universal and timeless panacea, to finally announce it with the
gesture of car tel est notre plaisir28 to be universally valid for every
conceivable human condition?
The road of cognition and conceptualisation from the initial
problem sensitivity to its institutional solution is extremely
complex. Subsequent practical actions must necessarily deal with
both more variety and more local specialities.29 Let us recall here
the experience of the recent past:30 in this century, even the most
successful ventures of legal borrowing have proven very limited
validity and sphere of authority;31 others have failed very early on
due to local resistance;32 the attempts of the WWII victors could
only count on moderate and temporary success from the very
beginning, specifically because of the political pressure inherent in
them.33
So, what is the basis of our miracle-expectation? Naivety,
ideological character, vested interest, foolishness, or simply the
self-emptying of the historical memory? Alternatively, perhaps,

28 “quia tale est nostrum placitum”, meaning “for this is our will”.
29 Cf., by the author, ‘Institutions as Systems: Notes on the Closed Sets, Open Vistas of
Development, and Transcendency of Institutions and Their Conceptual Representations‘ in
Acta Juridica Academiae Scientiarum Hungaricae 33 (1991) 3–4, pp. 167–178 (and also in
his Law and Philosophy [note 11], pp. 413–424).
30 For a summary, see, by the author, ‘The Law and Its Limits’ in his Law and Philosophy
[note 11], pp. 91–96.
31 In Turkey, the local version of the Schweizerisches Zivilgesetzbuch exerted influence
mainly within its metropolitan environment, despite the consistent and decades-long efforts
at transplanting it from the roots. Cf. June Starr Dispute and Settlement in Rural Turkey An
Ethnography of Law (Leiden: Brill 1978) xvi + 304 pp. [Social, Economic and Political
Studies of the Middle East XXIII].
32 E.g., in Ethiopia and Iran. For the former, cf. Jacques Vanderlinden Introduction au droit
de l’Ethiopie moderne (Paris: Librairie Générale de Droit et de Jurisprudence 1971),
especially pp. 212ff [Bibliothèque africane et malgache 10], and Heinrich Scholler & Paul
Brietzke Ethiopia Revolution, Law and Politics (Munich: Weltforum Verlag 1976), pp. 80ff
[IFO-Institut für Wirtschaftsforschung München: Afrika-Studien 92], as well as Transplants
Innovation and Legal Tradition in the Horn of Africa Modelli autoctoni e modelli
d’importazione nei sistemi giuridici del Corno d’Africa, ed. Elisabetta Grande (Torino:
L’Harmattan Italia 1995) 403 p. [Non Solo Occidente / Studies on Legal Pluralism 1].
33 E.g., in Germany and Japan. For the former, see Höland ‘Évolution’ [note 25], passim, as
well as Wolfgang Friedmann The Allied Military Government of Germany (London: Stevens
1947) x + 362 pp. [The Library of World Affairs]. For the post-WWII dilemmas in general,

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common sense in the world of various rationalities organising into


something irrational, with the shameful loss of credit of lived-
through human experience and their replacement with post-modern
clips of new idols?
Speaking of ourselves, we can only say that after the collapse
of the Socialist world system and amidst the immense internal
diversity of the Central and Eastern European region, as a uniform
demand, attempted endeavour and partly traversed path, we can
meet new endeavours at building law and order institutions
everywhere. Rule of law and consistent enforcement of the
maximum of human rights after the disintegration of past social and
legal order: this is a programme that here and there (especially
in Central Europe proper) gave way to considerable
institutionalisation and traditionalisation, already building itself
into actually self-reproducing socio-political processes. At other
places with weaker and less stable developmental background, this
same deconstructing construction has in fact led to the increasing
predominance of the stronger and the more unscrupulous, to the
intertwinement of Mafiosi and the state, and to a practical anarchy
reminding of the weak and atomised Western European statehood
having existed a thousand years ago.34
see John D. Montgomery Forced to be Free The Artificial Revolution in Germany and Japan
(Chicago: The University of Chicago Press 1957) xiii + 210 pp.
34 Materials prepared to think-tanks in international security policy on the nature and
dangers of a Russian variant to “rule of law” are rather pessimistic, depicting the
recalled conditions as reminiscent of the 12th–13th centuries’ Europe with weak statehoods
and disintegrated, unorganised powers (using Pierre Corneille’s El Cid as an exemplary
description). See, e.g., by Vladimir Shlapentokh, Russia Privatization and Illegalization of
Social and Political Life (Michigan State University Department of Sociology: 25 September
1995) 44 pp. [CND {NATO: Chris Donelly} (95)459] and Decentralization of Fears Life in
Post-Communist Society (1997) 5 pp. [CND {NATO: Chris Donelly} (97)026]. For its
historical components and their unbroken continuity, see also M. A. Smith Russia’s State
Tradition (Camberley, Surrey: Royal Military Academy Sandhurst, June 1995) 12 pp.
[Conflict Studies Research Centre E78], Tim McDaniel The Agony of the Russian Idea
(Princeton, New Jersey: Princeton University Press 1996) x + 201 pp. and Stefan Hedlund
Russian Roots of the Russian Crisis Return to an Anti-modern Society (Uppsala: September
1999) 26 pp. [Department of East European Studies: Working Papers 49]. In the light of
statistical data (five times more frequent occurrence of robbery and murder, six times more
frequent incidence of theft and violence, a quarter of million cases of both corruption and
economic crimes, etc.), see Igor Ilynsky ‘Law and Order’ in Russian Society in Transition ed.
Christopher Williams, Vladimir Chuprov & Vladimir Staroverov (Aldershot, Brookfield USA,
Singapore, Sydney: Dartmouth 1996), pp. 219–240. For an ultimate account, see Stephen F.

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6. (New Unorganic Components) Our legal scholarship has


always been aware of its triple linkage, even in Socialist times, and
has successfully striven for standing all conceivable demands of its
tasks. Firstly: it immersed in the country’s problems; secondly: it
fought with the overall questions of our region (the Socialist block
at the time) responsibly; and thirdly: it proved successful in
providing theoretical generalisation by searching for answers to
global concerns or responding international dilemmas.
At the end of the millennium, the world itself is changing. Its
global village, both on the European continent and in the Atlantic
region, is announcing the formation of a new law, legal style and
culture. Yet, our spiritual choices do never stand in and of
themselves: they imply practical consequences, which are
naturally seldom thought through by our intellectualising
inclinations.35 Thus, the contextuality of our problems may be
primordially spiritual in inspiration, yet real in practical
consequences (effectiveness and cost implications).36

(Past Legacy in Legal Experience and Scholarship) At the


threshold of a new millennium, when our nation is at a crossroads
again and must constantly choose from a variety of patterns,
techniques and tools, with actual choices influencing the shifting
points of the future, we have to provide answers to a number of

Cohen Failed Crusade America and the Tragedy of Post-communist Russia (New York:
Norton 2000) 305 pp. and, as an admission-cum-criticism, also Stephen Holmes
‘Transitology’ London Review of Books 23 (19 April 2001) 8, pp. 32–35. We hold less
knowledge regarding farther regions, e.g., the nature of the Kazakh, Tche-Tchen or
Uzbeghistan variant to “rule of law”.
35 As refreshing examples, see Western Rights? Post-communist Application, ed. Katharine
Lauer & András Sajó (Dordrecht: Kluwer 1996) 386 pp. and, by the author, ‘Codification at
the Threshold of the Third Millennium’ Acta Juridica Hungarica 47 (2006) 2, pp. 89–117
& ‘La Codification à l’aube du troisième millénaire’ in Mélanges Paul Amselek org. Gérard
Cohen-Jonathan et al. (Bruxelles: Bruylant 2004), pp. 779–800.
36 See, for example, the comparative analysis of American and Japanese ways of
policing, where the ethos developed from individualism, respectively communitarianism,
with differences in techniques, actually resulted in the poorness of efficacity despite
immense invested sources in the first case and the optimum effects despite low costs in the
second one. Denis Szabo Intégration normative et évolution de la criminalité [manuscript]
(Paris: [Institut de France] 1995) 51 pp.

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further questions. Is the nation a tabula rasa to be filled with


contents at will? Did it have, does it have values, sensibilities,
skills, ties, practical successes at all, from which extra strength can
be gained to build more securely, daringly or decidedly?37
We ought to know a lot more: things that we did not know
yesterday or do not know today. The historical prospects in legal
scholarship are deficient, rhapsodic, and superficial even about
yesterday. Our past is next to missing, unrevealed and non-
assumed to a huge part. Bibliographies on legal literature in
Hungary are available only for the last sixty years. Serial editions
(historical compilations of sources like decrees, central and local
decisions as well as initiatives and bills), which may fill up entire
rooms throughout the legal history of luckier European nations,
were not elaborated yet in our case—except for the Corpus Juris
Hungarici and some other rather fragmentary compilations. There
are no plans, no scientific policy, no money, nor any individual
initiative to at least launch this work which has not been done for
about a century. Neither are there any chances to start this
compilational work, or to publish them at least in fragments, since
a new generation is yet to grow up, which has a proficiency in
Latin, is prepared to research the sources (available exclusively in
Latin all through until the mid-19th century in Hungary) and has
the resources and ambition necessary to prepare the foundational
work and is able to undertake the survey of the sources in
Hungarian legal history and legal tradition. Otherwise how could
this incidental fragmentary elaboration be put together to give one
uniform picture? How researches could be organised to launch an
accounting worthy of the Humanities or an evaluation requiring
juristic creativity of local processes and performances (legal styles,
methods, and individual local juristic trouvailles)? How an
elevated spirituality could be born, which would provide insight,

37 Between the two rounds of the first free election in Hungary (1989–1990), as a staff
member to the European Academy of Legal Theory in Brussels, I have conducted memorable
talks with Professor BOAVENTURA DE SOUSA SANTOS, a legal sociologist from Coimbra. Both in
his quality of a MARXist social scientist and social democratic politician, he formulated
almost personal concern towards integrating particular local traditions, values and memories
of past successes into one scheme of launching and substantiating a new political, social and
economic start as a kind of psychological support able to ease the complex transformation
process leading to it.

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argumentative force, intellectual delicacy, joy, and spiritual


excitement beyond the dry facticity of events—similarly to, for
instance, English legal history-writing always promising some
vibrating spiritual recharge?
What can be learned from the tying force of history, tradition,
organicity, and feeling at ease, if nobody cares about them? When
have social theory, legal philosophy and socio-history addressed
tradition for the last time as the foundation of processes of
organic human practice? Or its mediatory capacity, its role in
handing down experience accumulated throughout generations, its
integrative ability and exclusive potentiality to merge various
movements and subtle changes into one enormous move?38 Or,
about tradition and reason complementing each other? Or the non-
subsidiary nature of rationality and everyday experience,39
especially the theoretical function of rationality in the logic of
j u s t i f i c a t i o n and the ontological function of practical
experience in the logic of taking a decision?
MARXism was only a compulsory garment. A lot of us could
not make peace with its science-philosophical presuppositions,
simplifications and unjustified extensions. Yet, it was still liveable,

38 True, all these considerations have already been widely developed in MAX WEBER’s
rationality-theory. Cf., e.g., Jerzy Szacki Tradycja Przegląd problematyki [Tradition in
oulines] (Warszawa: Państwowe Wydawnictwo Naukowe 1971) 290 pp., Carl Joachim
Friedrich Tradition and Authority (New York, Washington & London: Praeger 1972) 144 pp.
[Key Concepts in Political Science], Edward Shils Tradition (Chicago: University of Chicago
Press 1980) viii + 334 pp., Martin Krygier ‘Tipologia della tradizione’ Intersezioni 5 (1985),
pp. 221–249; and, as applied to law, also Martin Krygier ‘Law as Tradition’ Law and
Philosophy 5 (1986), pp. 237–262. A new light is shed on the entire range of problems by
H. Patrick Glenn Legal Traditions of the World (Oxford & New York: Oxford University Press
2000) xxiv + 371 pp., especially those chapters introducing and closing his arguments. Cf.,
in a wider context, by the present author, ‘Comparative Legal Cultures? Renewal by
Transforming into a Genuine Discipline’ Acta Juridica Hungarica 48 (2007) 2, pp. 95–113 &
<http://www.akademiai.com/content/gk485p7w8q5652x3/?p=92d3ae5b793d45919c7d1b
935a9389e1&pi=1> & <https://commerce.metapress.com/content/gk485p7w8q5652x3/
resource-secured/?target=fulltext.pdf&sid=54jelq45> & <http://www.akademiai.com/
content/gk485p7w8q5652x3/fulltext.pdf>.
39 Cf., e.g., Michael Oakeshott Rationalism in Politics and Other Essays (London: Methuen
1962) vii + 333 pp., especially at pp. 1–36; and, in a practical context, Jeane J. Kirkpatrick
Dictatorship and Double Standards Rationalism and Reason in Politics (New York: Simon &
Schuster 1982) 270 pp., in particular the paper on ‘Sources of Stability in the American
Constitution’, pp. 215–235.

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allowing the respect for history. In want of anything better (since we


could at the time not use a different conceptual framework), we
could still make use of it to serve life as a magister vitae.
It may be destructive if abstract principles in a
universalised ahistorical context are conceptualised now
again. For the mind can thereby be well emptied and systematically
detached from its everyday substrate, that is, from human
experience and practice.
As a final statement, I can conclude but one: we ought to talk
about messages worthwhile to be messaged, and about what only
vanity makes us message we may as well remain silent.40

40 For the variety of components, layers (in function of varying approaches), and chances of
contradictions in the undifferentiated use of a mainstream notion, cf., as an exemplary case
study, Richard H. Fallon, Jr. ‘»The Rule of Law« as a Concept in Constitutional Discourse’
Columbia Law Review 97 (January 1997) 1, pp. 1–56. For the complexity of problems
involved in transition, cf. also On Different Legal Cultures, Pre-Modern and Modern States,
and the Transition to the Rule of Law in Western and Eastern Europe ed. Werner Krawietz &
Csaba Varga (Berlin: Duncker & Humblot [2003]) xi + 139–531 pp. [Rechtstheorie 33
(2002) 2–4: II. Sonderheft Ungarn].

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RULE OF LAW:
Imperfectly Realised,
or Perfected Without Realisation?*

1. Declarations

“Communal values should have their social prestige restored


in the civilian society of Hungary.
The perfection and inviolability of the rights of men should
not overshadow the citizens’ simultaneous respect for their moral
obligations towards their community, to their allegiance and legal
responsibility as well as the unquestioned assumption of the latter.
Social and economic activity has to be governed by the full
consciousness of the law’s value and the impact public rules may
exert in any societal game.
Rights have to be referred to in order to resist despotism, to
redress and prevent actual grievances. They are not meant to be
invoked for just tyrannising others by misusing own superior
position or exploiting others’ inferior situation, or to strengthen
supremacy or financial position by the unscrupled over-use of the
legal machinery.
Public life and the legal arrangement marking out its
framework have to be governed by a mentality that encourages the
natural rewarding of honesty and the observance of rules.

* ‘Milyen a jog egy felelõsen politizáló kormányzat alatt? Kérdések Dávid Ibolya miniszter
asszonyhoz’ [A Professzorok Batthyány Köre ülésének elõkészítéséhez, 2000 januárjában]
[‘What is the law like under an administration committed to responsible policy-making?
Questions to Minister of Justice Ibolya Dávid {in preparation to the session of the Batthyány
Circle of Professors in January 2000}, in its first version in Ítélet (A PPKE JÁK lapja)
[Newsletter of the Faculty of Law of the Péter Pázmány Catholic University of Hungary] III
(March 24, 2000) 3, pp. 10–13 and Magyar Nemzet [Hungarian Nation – a daily] LXIII
(April 8, 2000) 83, p. 8, pre-published as ‘Jog és erkölcs harmóniája: otthon a
társadalomban’ [The harmony between law and morality: being at home in society] Napi
Magyarország [Hungary Quotidien – a daily] IV (March 1, 2000, Saturday) in »Nézet«, p.
21.

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We have to achieve that our country really serves as a


homeland, offering the sense of familiarity for the honest majority
of the fellow compatriots. Therefore, the civic virtue respects law
and order, supports the feeble, while it is benevolently tolerant
towards the forms unfolding personal talent and self-realisation.
However, thereby it is not to relinquish national past, present and
future, tradition and habits, as well as proven experience with the
knowledge accumulated throughout generations, for the sake of
ephemeral fads, meagre and modish ideas, individual or collective
initiatives dividing society or breaking up the ties binding together
the community.
Showing openness to others, to the particular features of
otherness in opinion or attitude, is implied in civic tolerance,
without limiting the community’s natural right to preserve and
strengthen its own identity.
The reforms civic tolerance supports must not threaten the
basic structure of society and, in the guise of any principle or
principled attitude, must not promote self-profiting from gaps in
law or trickery difficult to defend community interest against on
legal fora, but have to encourage the shared building of our future
for what we shall bear undivided responsibility.
Aware therefore, that law and morality operate differently on
differing fields, this is not an excuse for any of them to be played
off against the other.
No rule of law can be based upon cynical and self-centred
individual attitudes hardly refraining from the open trampling of
common good: rule of law is simply inconceivable without the very
idea of social solidarity, imbued with the collective ethos of and
interest in co-operation.
Therefore, it can neither be built on ethically intolerable or
unjustifiable foundations, nor serve aims considered morally
repulsive or unacceptable by the social majority.
Freedom is not anarchy; it is not designed either to encourage
the uninhibited fulfilment of inferior instincts.
Just like human dignity, freedom is also built on order and in
order.

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In the delicate balances cementing social order, proper


consideration must be given to the lawful desire for the respect of
public interest in preserving law and order, for the clear definition
of the law’s institutional frames and for the responsibility to be
taken for its foreseeable functioning.
Accordingly, rights shall not be asserted to the detriment of
common good and public interest but, just to the contrary, in order
to serve law and order at a higher level.
The difference between victims and victimisers, that is,
between those who suffered and those who benefited from causing
undue sufferance, must not be obscured.
The technicality of legal proceedings and the overall
extension of social care cannot be taken as a pretext for
diminishing personal responsibility to be taken by individuals and
their collectivities in shaping their own fates.
Common goals, frameworks encompassing large portions of
society, the mutually complementing interaction of law and
morality, furthermore, security, foreseeability and calculability of
institutional operation, as well as the encouragement of personal
and collective initiative in harmony with the overall ethos of
common good in one order of shared values—all these are worthy
of support in order to reactivate forces dormant in society and to
overcome apparent lethargy.
This is what successful nations had inherited from their
ancestors and they also owe their luck to the ability of its
continuous building.
This is exactly what Hungarian history teaches us and what
had nourished social harmony and speedy development in course
of the nation’s consolidation following the Great Depression as well
as the post-WWII economic and intellectual recovery and the
glorious days of 1956.”

The manifestation above was my own formulation in October


1997 to express my professional concern and anxiety within the
Batthyány Circle of Professors, which finally issued a Declaration
on Responsible Policy-making and Governance on 1 December
1997. It formulated, among others, that

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“We share the liberal principles of parliamentary democracy.


We think that the principle according to which the liberty of any
individual can exclusively be limited by the liberty of others shall
be fully taken as a guiding principle in societies where the
traditional ethics of obligations is respected by the great majority.
For the perfection of individual liberty is to be complemented by
the care for and promotion of the collective traditions of society.
In the civic society of Hungary, the esteem of common good
has to be restored. The inviolability of individual rights should not
overshadow the citizens’ moral and legal obligations towards their
collectivity. An ethos based on the observance of applicable laws is
a prerequisite for a society in which security for the honest majority
is guaranteed by law and not by force.
Corruption, hypertrophied »black« and »grey« economies,
criminality and social lethargy may excel in destabilising law and
order, especially if they are not adequately addressed by the law.
For, actually, corruption is not faced to the depth by the law, the
law-enforcing machinery fails in controlling crime effectively, and
the society is helplessly exposed to criminals.
The citizens of Hungary want order and security in terms of
civic equality. In order to reach it, a government committed to
public interest, an effective policy of law enforcement, a machinery
of justice with reliable and expeditious functioning, able to
eliminate mafia-type social operation, are all needed. Those having
unduly allotted or expropriated public property and public funds
are to be called to account.”

More than two years have passed since. At that time,


parliamentary elections were imminent, and now, half of the
mandate of the then incoming government had almost expired.
Well, how much can we be satisfied if faced with those concerns
now? Are they solved? Do they have a solution at all? Have our
expectations been founded at all or have they been taken away by
utopianism or sheer desires?

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2. Question-marks

What is the value of constitutionality, democracy and rule of


law, if they are accompanied, even a decade after their re-
establishment, by social disorder, the wasteful management of
resources, the segmentation of the country and its exposition to
external forces, the reluctance to fulfil rightful expectations, the
devaluation of millennial values of morality and justice in the name
of some allegedly supreme principles of, and the unscrupulous
domination of private motives stealthily creeping in through the
well-designed gaps in, the law, demoralising and intimidating the
rest of the community?
What is the purport of constitutionality, democracy and rule
of law, if they are accompanied by the growing impotence of the
state’s institutional machinery (which is the actor primarily
responsible for social order, for the concentration of the nation’s
forces, wealth and resources, as well as for the available social
balance), while they are mostly used to, heralding the brave ‘new
world’ of our ‘global village’, uncritically applaud whatever
individual and collective deviance?
Where can the ideal of law lead us if, deprived of
millennium-old foundations, it does not commit itself to genuine
values but transforms traditional virtues of moral ennoblement into
a function of momentary reactions by faceless masses, and degrades
law and order to the merely procedural framework of bellum
omnium contra omnes again, thereby proclaiming the scrupleless,
merciless and tireless specialists of fighting, the new heroes of law?
When shall we reach an epoch of constitutionality,
democracy and rule of law, ready to consider (in addition to its own
abstract and universal self-projections) the very basics of the
operation of our world as well, namely the genuinely (cultural-
anthropological, historical, demographic and sociological)
preconditions of its overall reasonable desirability as well as the
depth of complexity it is to mediate in, with both empathy to the
values of human associations (families and nations) and readiness
to balance if they are in conflict? Is it too daring to hope for a
genuine constitutionality, democracy and rule of law, in which

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honesty is usually awarded and whose privileges are not designed


to be firstly benefited by either political murderers and torturers or
looters of the nation’s fortune?
Is there law and order where anyone may feel encouraged,
with reference to some abstract entitlement, to dispute his/her
duties instead of fulfilling them as they are due? Is the new-old
anarchy that results from the limitless self-assertion of the
individual able to offer us a genuine perspective for the future? Is
it good for the nation if everyone has to be given but not to give, if
rights as freed from the burden of duties abound unlimitedly (for
ambitious rights-protecting activity may generate practically
anything and anything else at wish out of mere words)? Or, is order
not emerging as a delicate balance between rights and duties? Is it
not necessarily to be paid by someone if any right is narrowed or
extended? For everything has a price on this Earth. Can a right be
asserted without charging others with its cost?
What will remain for the individual to live in, if the public
disappears from behind? What will law and order be reduced to, if
there is no community supporting it? What is the measure for the
individual, if there are no longer “common good”, “public
interest”, “public order”, “public security”, “public morality” in
law that could serve as a framework? Can smaller nations (national
entities) be successful in fighting for their collective legal
personality to be recognised, if they simultaneously excel
themselves in liquidating anything public?
What has the noble ideal of human rights been degraded
into, if the martyrdom of a hundred of millions is treated with the
cynicism of double standards, while it serves as an invocation
justifying individual and group aggressivities demoralising existing
communities? May the alleged protection of rights prevent the
lawful resolution of actual situations? May rewarding the lack of
honesty, of inactivity, or parasitism or a criminal way of life (at the
cost of a by-chance neighbourhood) be qualified as a protection of
rights? May those intervening at the cost of others without own
responsibility to take be genuinely called as defenders of rights?
Whose rights do we advocate when we, in our enlightened zeal, just
watch the fight between victim and victimiser, investigator and

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criminal, law-enforcement agencies and jail-birds impartially as if


they were optional roles in, say, a sports-match?
Are we expected to glorify what just crops up to prevail? Is
the current state of domestic law at the same time also necessarily
unchangeable? Why is it not made apparent, which ideals with
what consequences are fomented by the various political clubs?
Why is there no governmental programme available to enlist
practical shortcomings and failures with feasible responses both in
the short and the long run, recording actual gaps, errors and
miscalculations in regulation, whether due to legislation or
constitutional adjudication, especially if they can be cured within
governmental competence or simply with majoritarian vote? Why
are we resigned to the legislator having once neglected his duty to
interfere? Abuses in privatisation, smuggling covered by banking
consolidation, globalised profiteering, tax-exemption for foreign
financiers and entrepreneurs, value-added-tax-frauds, corporate
fraudulence, industries based on car- and metal-stealing and
manipulations with wine-production and oil business may
proliferate without anyone ever openly declaring whether
regulatory blindness, lack of determination, or governmental
complicity have allowed them to “flourish” for a time undisturbed.
Are we ready to sacrifice the future of our nation for the mere
sake of abstract principles, instead of striving for decent and
prosperous civic life? Is it, for instance, constitutionally
unconstruable that the legality of enrichment should be proven by
those who make a fortune strikingly quickly? Is it inevitable that
illicitly obtained properties cannot any longer be questioned in
law? Is it inevitable that murderers and torturers remain unnamed
as exempt from any proceedings just because they could maintain
their terror long enough for that the period of statutory limitations
can pass and be eventually over? Is it tolerable that those having
formerly operated the dictatorial regime (excelling also in
denouncing and looting) are now given the opportunity to become
masters of the new regime, designers and teachers of an allegedly
democratic attitude? Is it necessary that—from among the sufferers
of the grievances of the 20th century—only the victims of socialism
are neglected among those offered some remedy?

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Is it due to incompetence, past burdens or some mysteriously


obscure principle that quite a few affairs, falling within state
competence and financing, are now channelled away to segmented
self-governing bodies, and with responsibilities vanished? As
known, oppositional leftist veto has blocked the subordination of
the Attorney General’s office (and, with it, the monopoly of criminal
charge) to government’s responsibility. The machinery of the
administration of justice is now governed by a self-generated self-
governing body, dedicated mainly to own interests (even
questioning others’ right to query about the state of and access to
justice, the respect of procedural deadlines, the uniformity and
consequentiality of judicial practice, the level of actual
indifference to political interests) in our country today. Research is
mostly administered and controlled by self-nominees within the
Academy of Sciences. Public health and institutional education are
for the time being within governmental competence, but public
opinion is marshalled by irresponsible commercial media. The
official safeguarding of citizens’ rights is institutionalised to a
hypertrophied extent, not resembling any longer its original
pattern, the single ombudsman.
Given the present conditions, what are the genuine factors we
are ruled by within this rule of law? Quis custodiet ipsos custodes?
With the first period of eight years behind us, our
constitutional justices have switched recently over from their
hyperactive interventionism (suggested by the “invisible
Constitution” they hypothesised) to the proper enforcement of
constitutional provisions. As to the Court’s first period, enforcing
anything in law without prior adequate entitlement and competence
is usually considered sheer arbitrariness in a constitutional state.
Were they ever once empowered to infer decisions with effects
dramatic upon the actual purport of the entire transition process
and the paths of law beaten in Hungary from either their own
discretion or foreign standards, instead of keeping silent in cases
when the Constitution itself fails to provide suitable guidance?
Policing and crime control are also rather discretionary. In
itself, the violation of a rule is often not enough for measures to be
taken and proceedings to be instituted, albeit the very fact that

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further substantive reason has to be given for persuading the agent


of law to react does encourage corruption. Moreover, law in action
may vary from branch to branch in central government and from
county to county, district to district in local government, and finally
also from agent to agent. Measures are eventually taken (if at all)
also in consideration of convenience, fashion and routine, easy and
guaranteed ending—as if legal officials took it for granted that only
a tiny minority can afford formal proceedings confronting their
arbitrary selection.
After all, should our legal ideals be taken as a sheer
constraint imposed upon the populace from above, or as a way
rather helping us to become more noble, sophisticated and gentle,
that is, more mediated and patterned, in our handling of human
affairs and social management? Do they indeed help us in
achieving our professed goals, or are they simply wedged in as
external limitations, alien to the respect for the Natur der Sache
and detouring us therefrom? Are they indeed designed for us or
rather for someone’s “world spirit” imposed still upon us, after we
have already experienced the ignominious and bloody adventure,
ending in a crushing defeat, of some other contemporary
ideologies? Should our nation not also be involved—as an
interested partner—into this noble venture, by giving it a share in
its blessings, too? Or, do those presumptuous minds have the
faintest idea that people judge practice by facts of practice, instead
of taking part in sheer intellectual adventurism?

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RULE OF LAW
– AT THE CROSSROADS OF
CHALLENGES*
(Law: Values & Techniques) Human history is not only the
field of new recognitions but the scene of adapting experiences
gained from failed revolutionary novatory zeal to liveable practice
and, thereby, also the stage of the sobering test of their
acceptability, when their realisation, too, is assumed. After the
euphoria of “We can achieve everything!” in the so-called
honeymoon period—having grown from infantile disorder into the
destructive plague by the French Revolution—was over, the
jurisprudent PORTALIS addressed the French National Assembly to
present the Code civil as a first step on the path of consolidation of
a balanced social progress under stabilised conditions, by words as
follows:

“In these modern times we were too much fond


of changes and reforms. If the centuries of ignorance
are the scenes of abuses as regards institutions and
laws, then the centuries of philosophy and
Enlightenment are perhaps much too often nothing
else than scenes of exaggerations. […] Change is
needed, when the most perilous of changes would be
if we did not make the change. Because we must not
fall prey to blind prejudice. All that is old was once
new. The essential thing is, therefore, to put the stamp
of stability and permanence on our new institutions,

* In its first version, presented in Hungarian as the closing address to the workshop on
“Nation and the Rule of Law”, organised by Sándor Lezsák, MP, and Professor Tibor Király,
of the Hungarian Academy of Sciences, in the Kossuth Klub in Budapest in 2001—
‘Jogállamiság – kihívások keresztútján’ Valóság XLV (2002) 4, pp. 28–39 & <http://www.
valosagonline.hu/index.php?oldal=cikk&cazon=351&lap=0>—, and published in
English in Iustum, Aequum, Salutare [Budapest] I (2005) 1–2, pp. 73–88 and, in an
enlarged version, presented in English at both the “Saint Thomas Education Project” [Step]
Conference at Palermo in 2005 and the International Symposium on “State, Social
Transformation and Legal Reform” in Nagoya in 2006.

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which ensures them the right to grow old. It is


profitable to safeguard all that we do not have to
destroy; the laws must spare habitudes, if they are not
harmful.”1

Well, our days’ fashionable call-words and endeavours,


channelling our everyday actions by commanding us to get along,
are yet to be tested in practice. At present, it is not even clear if
their vague terms are at all more than just random (or, consciously
constructed) products of enlightened minds, issued from
occasional constraints (or political calculations), which may have
once been generated either by humility towards values or by
professional intellectualism reduced to a mere parrotry of slogans.
All this notwithstanding, our subject can hardly be addressed
otherwise than in a tone of respect and pathos. ‘Rule of law’? A
momentous notion implying dramatic human experience, a concept
of great traditions and significance regarding its theoretical
foundations and historical dilemmas, implying both ambiguities2
and heavily laboured responses fought through and out: a notion
which refers to a similarly noble series of further concepts such as
‘human rights’, ‘constitutionality’, ‘parliamentarianism’,
‘democracy’, and so on. And yet—or, exactly for this very reason—
we have to continue the train of thoughts commenced above. For all
these call-words present themselves as if they spoke from the past.
However, we cannot know for sure whether or not they always and
everywhere convey indeed nothing but the message of the past,
embodying an elementary search of humans for ways out from one-
time tensions, with adherence to values and institutional paths of
responding to challenges of the time, all crystallised through and at
the cost of the hard experience of past generations. For although the
words themselves may be rather old terms, what they imply are

1 Jean-Étienne-Marie Portalis ‘Discours préliminaire’ in F. A. Fenet Recueil complet des


travaux préparatoires du Code civil I (Paris: Videcoq 1836), pp. 11 and 481.
2 See, for the suitability of the very notion ‘rule of law’ for almost nothing except for mapping
out routes to search for own solutions, and also for the impossibility of giving any adequate
and exhaustive definition of it, the recent debate in the US as overviewed by Richard H.
Fallon, Jr. ‘»The Rule of Law« as a Concept in Constitutional Discourse’ Columbia Law
Review 97 (January 1997) 1, pp. 1–56.

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genuinely new strivings, and all we may realise about them is that
presently and with all our efforts, we do pursue them but have no
theoretical proof as to for what purpose exactly, and we do not even
have a dim idea about the world that would emerge as exactly a
result of them, as there is no one having experienced that so far.
On the European continent and for centuries, the culture of
Rechtsstaatlichkeit has stood for the statutory regulation of
given fields with given enforceable guarantees by the prevailing
law and order, i.e., under the protection of state power, while in the
Anglo–American world the ideal culture of the ‘rule of law’ has
meant just the opposite to any rule by men, the ultimate guarantee
of which is justiciability of any issue, that is, the availability of
conflicts to subject them to the decision by judicial fora. Or, while
in continental Europe we put our trust on the force of enacted rules,
on the very fact of the issuance of rules, the English-speaking
civilisation relies upon the sheer independence of the judiciary and
the trust on the strength of undefined principles,3 as its historical
experience may have built a chain of confidence reposed on
processes themselves, if operated by good will and socialised
within a network duly fed back.4 Now, the question may arise: what
has become of all this by today, amongst our circumstances called
post-modern? Well, the tentative answer may hold that, on the final
analysis, nothing but the cult of endless disputability has
pervaded the scene when statutory law and order does not matter
any longer—apart from providing opportunity for practicing
lawyers arguing according to the demands and at the money of their
clients, and also for the growing number of those professional
defenders of human rights, whose exclusive ambition is steadily
shifting from making the rules observed to questioning the rules
themselves, no matter how clear they are textually otherwise. For,
as we may learn from the contextual dependence of premises in
legal logic, any rule can be circumvented from both below and

3 Cf., by the author, ‘Varieties of Law and the Rule of Law’ Archiv für Rechts- und
Sozialphilosophie 82 (1996) 1, pp. 61–72.
4 Within a revealing context, cf., as classic, Albert Venn Dicey Introduction to the Study of
the Law of the Constitution [1885, 8th ed. reprint] (London: Macmillan 1923) cv + 577 pp.
& Lectures on the Relation between Law and Public Opinion in England during the
Nineteenth Century [1905, 2nd ed.] (London: Macmillan 1926) xciv + 506 pp.

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above. And it is by far not logic itself (taken as the mathematics of


thinking, elevated sometimes into mythical heights in the
absolutism of rationality) that is positioned either to challenge or
counteract this—as logic in itself is faceless and mute, and can
only be asserted through roles designed for it by those having a
recourse to it—, but only an external power, seemingly melting
away in our hands: the strength and culture of a commitment to the
respect for rules.5 If this is missing or becomes a secondary
consideration in the routinised handling of ordinary cases—only
showing that a decision made upon the strict following of a given
rule was not in interference with any implied interest for the sake
of which the rule would have been worth questioning—, the lawyer
of our age may come up practically at any procedural stage at any
time either to find a gap in the law, allegedly blocking the proper
adjudication of the case, or to recourse to constitutional review for
the re-assessment of the rule’s questioned constitutionality, in both
cases only in order to justify the client’s accidental claim to reach
a specific solution, as if it would necessarily conclude from the law
itself. That is, the end-result of such lawyering is the practical
mockery of law in either case: the avoidance of the applicability of
an otherwise applicable rule.
This abstractly dry formulation may seem hard to grasp for
everyday thought, due to the harsh but concealed reality behind it.
However, the point at stake is that law can at most sanction values
which are, if at all, only approximated after they have been
translated into the instrumental language of statutory texts. At the
same time, even the most accurately drafted rules are inevitably
exposed to the objection—no matter how strikingly artificial (and
practically interest-driven)—that, given a gap in the law, they do
not apply to the case. After all, neither the rule, nor its allegedly
implied logic can help us decide whether we should opt for
applying the rule, after having construed a similarity between the
rule and the case, or just to the contrary, disapplying it because
their dissimilarity is construed.

5 See, by the author, Lectures on the Paradigms of Legal Thinking (Budapest: Akadémiai
Kiadó 1999) vii + 279 pp. [Philosophiae Iuris] and A jog mint folyamat [Law as process]
(Budapest: Osiris 1999) 433 pp. [Osiris könyvtár: Jog].

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Let us now return to the two basic legal cultures familiar to


us. In the Anglo–American Common Law, the method of
distinguishing among precedents, known for long periods, might
have caused a judicial revolution or practical renovation of law on
a daily basis and frequency, but it has not in fact, just because both
the conservatism of the judiciary and the hierarchical structure of
appeal were equally capable of controlling jurisprudence, keeping
it in a tight check. In the Civil Law, built on the application of
statutory texts as a logical ideal, in point of principle the legal
instruments designed to fill gaps in law could also have resulted in
a fluctuating judicial practice (with as startlingly6 discretionary
solutions as, e.g., in Switzerland, where, in the last resort, the judge
may openly and directly take over the role of a legislator7) yet
actually they have not either, because the same professional
pathos—here appearing under the aegis of the exclusivity of an
ideally logical application, resulting in deductive conclusion—has
eventually prevented the techniques (reserved for limiting
situations of exceptional cases) from spreading and becoming
destructive.
After all, what is given in law is nothing but a set of
techniques. True, certain limitation in the practical application
of techniques can be achieved by other techniques. However,
effective limitation can only be secured—instead of techniques
themselves (that is, by rules institutionalising techniques through
their linguistic formulation in the normative ordering)—by the
entire culture operating and also substantiating law: primarily by
the culture of the legal profession and secondarily by
general social culture. (It is to be noted that the latter may
counterbalance the former while the former may supersede the
latter, for societal life is composed of the endless alternation of
tensions and loosenings of such a kind. However, a variety and also
a mutuality of segments, layers and sets of norms interacting in
social integration have arisen in all societies just to provide for

6 Cf. the revolted echo even to the news of its draft by Benjamin N. Cardozo The Nature of
the Judicial Process [1921] (New Haven: Yale University Press 1961), Lecture III, in
addition to the ones by RUDOLF STAMMLER, EUGEN EHRLICH or HERMANN KANTOROWICZ in
Germany.
7 Schweizerisches Zivilgesetzbuch (1907), § 1.

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social identity, defining the framework of social reproduction, a


complex network of regulations with mechanisms of check &
balance, in a medium of tensions balanced amongst various
challenges to preservation and change.)
“God is dead”8—although doubt and negation in final issues
had become trivial long before NIETZSCHE, I wonder whether we
have ever thoroughly reflected upon what a society knowing neither
transcendency nor supra-human authority any longer would be
like. Could it mean more than ORTEGA’s rebellion of the masses9 or
the raving mob once cherished with enlightened intentions by
Viridiana?10 In a society, where the dignity of the person is replaced
by the mere self-assertion of the individual, where the concern for
a nation’s destiny is substituted by the undoubted right to the free
choice of domicile and marriage by occasional partnerships, where
citizens are reduced to mere consuming units and conscience gets
cared for by sheer mass media control—well, in such a society,
could there remain any bond other than merely procedural
frameworks and rules of game arising from optional agreement,
similar to contracts between individual parties but projected as
universal (as hypostatised in the very idea of an underlying social
contract)? Religion and morals are no longer in a position to
support. Consequently, there are no duties any longer known, only
rights. And the law itself (if at all formulated in rules’ structure) is
less material than processual now, serving as a mere rule of the
actual game not guiding any longer on the substance of what to do
or what to refrain from, as exclusively the guaranteed procedural
frameworks of how to proceed on are mapped out by it. Law is
mostly reduced to the issue of how and with what legal claim we
can act successfully when addressing either the state we have
opted for or another self-asserting individual (e.g., when
demanding material support by reference to some human rights

8 Friedrich Nietzsche Thus spake Zarathustra [Also sprach Zarathustra, 1883] trans.
Thomas Common [1891] in <http://eserver.org/philosophy/nietzsche-zarathustra.txt>,
Prologue, para. 2.
9 José Ortega y Gasset La Rebelión de las masas (Madrid: Revista de occidente 1930) 315
pp. {Revolt of the Masses authorized trans. (London: Allen & Unwin & New York: Norton
1932) 204 pp. & trans. Anthony Kerigan, ed. Kenneth Moore (Notre Dame: University of
Notre Dame Press 1985) xxxi + 192 pp.}.
10 Luis Buñuel Viridiana (1961).

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after the only ascertainment of the bare fact that we as humans exist
is made).
Since its conception as a discipline committed to social
criticism, legal sociology has proven countless times how
unfounded and illusive the lawyers’ normativism embodied by their
traditional professional mentality is, presuming law having strength
by itself. It is only legal sociology to teach that the force of law is
nothing but symbolic, in so far as it can attach the additional seal
of a particular social authority to tendencies already asserting
themselves in society at the most.11 Indeed, in our post-modern era
it seems as if common sense were replaced by simple-mindedness.
Ideologically, we have endowed law with a mythical might and
authority, while in fact we have emptied it.12 By tearing it away from
moral and social traditions, we have detached it from its millennia-
old exclusively organic medium, thereby depriving it of its only
genuine foundations; what is more, we do not even respect it any
longer, as a matter of fact. We only use it as a field of operations in
our unscrupulous battle repeatedly re-launched with no end,
transubstantiating brute force (or substitutive pressure) into so-
called inventive legal reasoning.
Rule of law? When I am discussing here the role of society
and societal culture in support of law, I do not mean only to allude
to the facelessness of legal techniques taken in themselves. They
are n e u t r a l in themselves indeed, as they can be used to serve
different, moreover, conflicting values as well. Just as law is not
simply a pyramidal aggregate of abstract rules, posited in a given
hierarchy, but the living total of meanings and messages getting
concretised in one way or another at any time, following
generations’ efforts at both refining them so as to build them into a
systematic dogmatics and transforming them into liveable practice
by filtering them through conventionalisations contextualising

11 See, by the author, ‘Towards a Sociological Concept of Law’ International Journal of the
Sociology of Law 9 (1981) 2, pp. 157–176.
12 Cf., reviewing Paul F. Campos Jurismania The Madness of American Law (New York &
Oxford: Oxford University Press 1998) xi + 198 pp., by the author, ‘Joguralom? Jogmánia?
Ésszerûség és anarchia határmezsgyéjén Amerikában’ [Rule of law? mania of law? on the
merge of rationality and anarchy in America] Valóság XLV (2002) 9, pp. 1–10 &
<http://www.valosagonline.hu/index.php?oldal=cikk&cazon=326&lap=0>.

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formal regulation in the materiality of practice, it is neither backed


simply by a hierarchical structure of values but by a sensitively
changing compound of a huge variety of aspects and considerations
of values. For it is always a responsible decision with a personal
stand taken in pondering values and balancing amongst them that
the formalism of the mere observance of rules in law disguises.
After all, when we, giving official reasons for our decision, subsume
facts under a rule through logical inference or reject a claim in
want of subsumability,13 actually we do balance between values.
Apart from few truly exceptional cases, usually we do not negate (or
exclude from supporting) some specific value just in order to
implement some other value(s) instead. Just to the contrary. Being
skilled in the judicial ‘art’ (made up of empathy, intuition and
ingenuity, among others), we strive to find solutions which may
ensure the optimum realisation of values (by allowing to serve
important values without the disproportionate detriment to other
values), solutions which can be duly justified, as resulting from
(with no similarly arguable alternative in) the given normative and
processual contexture. By the way, this is exactly the reason why we
are used to proudly recall the term ‘ars’ used by ancient Romans
when referring to law,14 denoting in Latin proper ‘art’ and
‘craftsmanship’ alike.

(Human-centeredness and Practical Orientation) When I am


speaking about historical experience, i.e., truth and justice fought
out through the lives of generations, I mean testing by everyday
practice. Nevertheless, it has to be remarked that accepting the test
of everyday practice as a criterion is theoretically far more honest
and demanding than today’s a-historical neo-primitive absolutism,
growing into the present mainstream of Atlantic thought. For even
MARXism, among others, by emphasising the moment of praxis, the
principle of historicity and the role of hic et nunc particularity in
the overall complex of historical (self-)determination, has made a

13 For a reconstruction, cf., by the author, Theory of the Judicial Process The Establishment
of Facts (Budapest: Akadémiai Kiadó 1995) vii + 249 pp.
14 “ius est ars boni et aequi” Celsus in D 1.1.1. pr. Ulp I Inst (Pal. 278).

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standard out of actual practice itself, taken as an accumulation of


human experience and self-reflection. As opposed to it, the current
time-spirit replaces responsible human actions with the forging of
hectic programmes, offering hardly anything more than feeble life-
substitutes, ready to present even immature whims and varieties of
otherness (sometimes bordering on deviance) in an a-historical
universality. Well, it is known from reconstructions in the history of
ideas that the very notions of rule of law, human rights,
constitutionalism, parliamentarianism, as well as democracy—all
these are also products of endeavours, recognitions, successes and
failures accumulated through thousands of years, to which
meditative pagan Antiquity, the Christian Middle Ages, as well as
modern and contemporary times (striving for anthropo-centrism)
may have equally contributed. And the fact notwithstanding that
they may seem relatively completed and solidified as abstracted in
a series of theoretical statements from the Enlightenment up to the
present age, they are in a constant process of refinement and
further shaping. It is exactly the Christian tradition that had laid
the foundations for all these, with the transcendence of divine law
and the human commitment to values, by substantiating the
inviolable and unquestionable dignity of the human person. More
importantly, it is also the Christian tradition that marked out the
dependence of human institutions (as mute instruments in
themselves) upon a given destination designed for value-
implementation.15 This is the reason why Christianity has set
internal barriers for these institutions to prevent them from growing
self-centredly predominant, that is, from getting elevated to a self-
definingly independent power with the eventual chance of turning
against man himself, by the eventual risk of destroying the rest of
his dignity.

15 Cf., by the author, ‘Buts et moyens en droit’ in Giovanni Paolo II Le vie della giustizia:
Itinerari per il terzo millennio (Omaggio dei giuristi a Sua Santità nel XXV anno di
pontificato) a cura di Aldo Loiodice & Massimo Vari (Roma: Bardi Editore & Libreria
Editrice Vaticana 2003), pp. 71–75, enlarged and adapted as ‘Goals and Means in Law’ in
Jurisprudencija [Vilnius: Mykolo Romerio Universitetas] (2005), No. 68(60), pp. 5–10 &
<http://www.mruni.lt/padaliniai/leidyba/jurisprudencija/juris60.pdf>, & as presented at
the Saint Thomas Education Project Conference in Budapest in 2005 <http://www.
thomasinternational.org/projects/step/conferences/20050712budapest/varga1.htm> as well.

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In the Western hemisphere—or, in the North (to use the term


of financiers regularly convening in Switzerland at Davos)—,
mankind has commenced writing a new history since post-war
reconstruction. What are the characteristics of this? Self-
confidence, success, devaluation of human labour (as if it were a
post-modern correction of the burden of labour to be carried by
humans since their Expulsion from Paradise upon the Divine
punishment), haughtiness of learning, the rule of reason and
abstract planning with guarantees of calculability and
predictability: all in all, trends disregarding God, trying to
substitute Him by the individual self and also burying Him more
and more vociferously and provocatively day to day. And here is the
Individual entering the scene, in company of a few billion fellows,
with each and every one representing their selves as the centre and
last meaning—i.e., the axiomatic zero point—of the Universe,
moreover, as a key to its hermeneutics and, in their ephemeral
lives, also as the immoderately unrestrained consumer using up
whatever goods to be found on Earth. Now his incidental pleasure
constitutes the exclusive criterion of values. His rather shapeable
psychical disposition is the gauge for the existence of whatever
institution. ‘Rule of law’, ‘human rights’, ‘constitutionalism’,
‘parliamentarianism’, as well as ‘democracy’—just like the once
revolutionary thought of res publica itself—serve from now on as
the framework of random motions (maybe sometimes pulled in
idiotism pouring on us from the media) for these few billion
creators of world as plenipotentiary carriers and users of the ever
growing catalogue of nothing but rights, and also as the guardians
sanctioning the momentary state of this world, finalising or further
shaping it.
A future for Hungary? The outcome into which the sublime
ideas of the rule of law, human rights, constitutionalism,
parliamentarianism, as well as democracy became (de)formed
since the Atlantic revival after World War Two (and especially in
hands of radical leftist anarchists, marking the generation of 1968)
is becoming visible just nowadays, showing in full blossom the
apotheosis of irresponsibility, the cult of unworthiness with
chanceless chances; for, strictly speaking, eventually no one can

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any longer fail, since by the very biological fact that we are born as
humans, now we may start reclaiming full catalogues of rights for
ourselves with no obligation to return anything. Our ideals are still
floating in the air, challenged but not shaken now, when the
Atlantic world starts facing the outcome. Now, when the underlying
societal texture has fallen apart, the hearth of families has cooled
out, and citizens thoroughly programmed have become
alternatingly robots and media-controlled consumer-units,
everyone fights against everyone an endless battle in the name of
law—with women snarling at men, minors turning against their
parents, those infatuated with the same sex incited against those
attached to the other one—, loathing in common the State and the
Church as the number one public enemy, from a cloud of daze.
Indeed, has there been anything left to be respected in anyone who
still dares set standards and values, moreover, who longs for
adhering to them? We do not know yet what tomorrow’s Western
world will be like if irresponsibility, environmental destruction,
human sinning without punishment, glorification of licentiousness
and life-substitutes offered by simulated virtual worlds will have
already grown to global proportions as they are going to in our day,
by half-time of our near future.
We do not know either how much and how far our everyday
sense and experience, having proven unfailing so far in our human
history of thousands of years, will be able to adapt themselves to
this world, when its reserves will exhaust, and what final impetus
will, if at all, provoke humans to revolt for re-taking their human
dignity. For, enthused by the success story of the Atlantic world, we
may have scarcely realised that the uninhibited universalisation of
rights is not only a gesture by our own enlightenment but also a
burden which we mostly generously (but effectively) pay at—
mostly—others’ cost.
For sexual licentiousness is also a budget and social capital
item (just like AIDS) in the households of nations, and an economy
based on free labour market squanders the resources just as the
retirement at the meridian of life does at the cost of offsprings born
in a decreasing number. The global division of labour (when even
toothpicks may be produced within transcontinental co-operation

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in Europe), too, imposes a tremendous burden on the energy-


household of the Earth, just like dumping prices resulting from the
rivalry of airlines competing for the market of leisure do. This is to
say that rights, too, cost. As the extension of the sheltered sphere
of privacy results in increasing costs and decreasing efficiency in
the maintenance of public order, also massive malpractice
litigation implies costs rocketing in health and social care.16 This
may be a vicious circle, for the richer a nation, the more resources
it can spend to meet the standards set by its own enlightenment.
However, the more unlimitedly it provides rights, the more reserves
it has inevitably to spend on overall societal reproduction.
It may be intellectually exciting an experience to watch from
a distance the game of some wealthy nations, if they are self-
destructive and counter-productive beyond a certain extent;
however, it is by far not worth risking our own modest existence (in
the small states of the Central European region) with no giant
reserves in this game. Strategic planning is mostly undertaken by
big countries, because there is more for them to win or lose by
predicting the future. Conversely, nevertheless, smaller states run
a relatively bigger risk, because it is their sheer existence with
their chance for survival what is eventually at stake. For they not
only risk a relatively greater part of their financial chances (or
channel it on a forced track) but may thereby also seriously risk
their moral reserve and future prospects as well. Let us
contemplate, for instance, the disproportionately huge costs to be
borne by Hungary, due to her geographical location, to enforce the
internationally renowned high standards of human rights to manage
her part in the global migration, pushed by the misery in a number
of wrecked societies in either our neighbourhood or major parts of
Asia and Africa. Or let us think of the additional obligations arising
from the necessity widely felt as vital to re-socialise parts of the
Roma population here.
Nowadays it is popularly held among those considering
themselves enlightened that the state is growingly losing ground.

16 Cf., by the author, ‘Law, Ethics, Economy: Independent Paths or Shared Ways?’,
presented at the Saint Thomas Education Project Conference in Barcelona in 2005, <http:
//www.thomasinternational.org/projects/step/conferences/20050920barcelona/varga1.htm>.

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Whereas, the operation of the rule of law, human rights,


constitutionalism, parliamentarianism and democracy presume the
unquestioned operability of the state. Although the state of the
future may not be a powerful one, it ought not in the least to be a
weak one either; it shall be an organisation strong enough despite
its relatively modest extent.17 Anyway, what else is being built for
decades now under the aegis of the United Nations, the North
Atlantic Treaty Organisation, or the European Union? And what
else is the political game all about? Well, any of our large-scale
decisions requires a firm conception, and as soon as mental
anticipation is replaced by resolution, a readiness to act is also
required, so that genuine deeds can no longer be prevented by any
further hesitation. For any administrative action to become
effective, determination is needed, which in turn presupposes
smoothly functioning communication channels to spread
information. It is firmness and readiness to act that is a sine qua
non for the maintenance of public order. The pre-requisite of
administering justice is a sense of responsibility, mature enough to
morally face the consequences of the decision.
Now, let us examine from the other—positive—side all what
our call-words must not degenerate into. We have to serve the
d i g n i t y of the human person with humility and moral
commitment, striving for justice and equity, aware of the truth of
our belief in the basic honesty of man as filled with a sense of
responsibility, in a way that our behaviour can serve as a pattern for
others. We have to serve human dignity to be able to live in a social
community, in the natural bonds of family and nation, with equal
sensibility for rights and responsibilities, building law and order
invested with all authority as may be needed.
The a s s u m p t i o n o f r e s p o n s i b i l i t y, personal
commitment and the inevitability of making decisions do not

17 Cf., e.g., Arthur Fridolin Utz Zwischen Neoliberalismus und Neomarxismus Die
Philosophie des Dritten Weges (Cologne: P. Hanstein 1975) 184 pp. [Gesellschaft, Kirche,
Wirtschaft 8] {Entre le néo-libéralisme et le néo-marxisme Recherche philosophique d’une
troisième voie, trad. Morand Kleiber (Paris: Beauchesne 1975) 206 pp.} and Taketoshi
Nojiri ‘Values as a Precondition of Democracy’ in Democracy Some Acute Questions [The
Proceedings of the Fourth Plenary Session of the Pontifical Academy of Social Sciences,
22–25 April 1998] ed. Hans F. Zacher (Vatican City 1999), p. 105 [Pontificiae Academiae
Scientiarum Socialium Acta 4].

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apply for everyday life-situations only. Even if we should find


ourselves to have no spouse, or to be childless, jobless or homeless,
or, let us say, find ourselves to have no honesty or self-control, we
should not act as vegetative beings, resorting to accusing others,
trying to find excuses and raise pity for ourselves as innocent
victims of some social disease, easily identifiable anywhere at any
time on principle. Well, one of the most noble objectives of training
lawyers now is to convince future generations of the inevitability of
personal commitment and of the necessity of the acceptance of
one’s own personal fate when defining and undertaking our
individual life-missions.18 It is obvious that the responsibility for
any choice and decision has to be shared by those who make the
law and also by those who just apply it.
One and a half decades ago, after the collapse of Communism
in the middle part of Europe, there were only sporadic voices
warning against the possible damages by a purely mechanical
extension of the patterns taken from the Western routine of
the rule of law, and the Western law-exporters themselves rejected
these fears in outrage.19 By now it has become obvious that our
vast Euro–Asiatic region of Central and Eastern Europe, spanning
from Vladivostok to Tallinn to Dresden to Ljubljana, was reduced
to a field of experimentation by the rhetorical champions of
tolerance, imbued by merciless uniformisation and theoretical
arrogance.20 And after their “Law and Development” programme,

18 Cf., e.g., by the author, Lectures... [note 5], and ‘Búcsúírás’ [Farewell writing] in Pázmány
Péter Katolikus Egyetem Jog- és Államtudományi Kar 2003-ban végzettek évkönyve
[Yearbook of the class graduating at the Faculty of Law of Pázmány Péter Catholic University
in 2003] ed. Emese Boros & Nóra Ohlendorff (Budapest: Alumni 2003), pp. 119–122.
19 “Laws [...] were made for people and not people for the laws; and they have to conform
to the character, the customs and situation of the people for which they were made; [...] and
it would be absurd to indulge in the absolute ideals of perfection in things that are only
suitable to realise the relative good [...].” Portalis in Fenet, I [note 1], pp. 466–467. As one
of the case-studies, see Stephen F. Cohen Failed Crusade America and the Tragedy of Post-
Communist Russia (New York & London: W. W. Norton & Company 2000) xiv + 304 pp.,
reviewed by the author, ‘Failed Crusade: American Self-confidence, Russian Catastrophe’ in
the present volume.
20 See, e.g., Ugo Mattei Introducing Legal Change Problems and Perspectives in Less
Developed Countries [manuscript of a lecture delivered at the Session of World Bank
Workshop on Legal Reform in Washington D. C. on 14 April 1997] (Berkeley & Trento 1997)
19 pp.; Paul H. Brietzke ‘Designing the Legal Frameworks for Markets in Eastern Europe’

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propagated and implanted as a panacea by the wishful American


liberal doctrines had failed all through Latin America, they now
decided to test it again against a by far more difficult terrain, on the
ruins of Communist dictatorial regimes. What a wonder, this
missionary zeal has all but aggravated the bankruptcy in a number
of ex-Soviet countries (maybe except partly for the Baltic states21)
and also in Albania.22 (Meanwhile, in the heart of the Hungarian
capital and as housed in the building of the one-time communist
National Planning Office, the so-called Central European
University was established with a missionary dedication to
theoretically promote abstract universalism in the entire former
Socialist bloc.)
Since the euphoria of the transition’s honeymoon period in
Central Europe is over, public opinion (fed-back by accumulating
practical experience) is already more critical concerning the
adoption of ready-made recipes and wonder-working gestures,
miracle-expecting attitudes and the like.23 More importantly, those
in Parliament and government are more about to realise as a truth
of our landmarking present that simplistic and rapid methods,
smuggled from somewhere by elitist groups as showing the
exclusive road, have most probably no potential to become
organically integrated into ongoing social processes and can
therefore scarcely serve our own interests with the optimum
effectivity in the long run.

The Transnational Lawyer 7 (1994), pp. 35–63; Armin Höland ‘Évolution du droit en
Europe centrale et orientale: assiste-t-on à une renaissance du »Law and Development«?’
Droit et société (1993), No. 25, pp. 467–488; Gianmaria Ajani ‘La circulation des modèles
juridiques dans le droit post-socialiste’ Revue internationale du Droit comparé 46 (1994) 4,
pp. 1087–1105 & ‘By Chance and Prestige: Legal Transplants in Russia and Eastern
Europe’ The American Journal of Comparative Law XLIII (Winter 1995) 1, pp. 93–117.
21 Cf., by the author, ‘Rule of Law between the Scylla of Imported Patterns and the
Charybdis of Actual Realisations (The Experience of Lithuania)’ in the present volume.
22 See, e.g., Vladimir Shlapentokh Russia Privatization and Illegalization of Social and
Political Life (Michigan State University Department of Sociology: September 25, 1995) 44
pp. [NATO CND {Chris Donally} (95 459)].
23 “The State of Law is Not a Gift”—this is how the first ombudslady of Poland summarised
her sobering experience half a decade after the expiry of her office term. Cf. Ewa Łętowska
[with husband Janusz Łętowski] ‘Poland: In search of the »State of Law« and Its Future
Constitution’ in their Poland: Towards to the Rule of Law (Warszawa: Wydawnictwo Naukowe
Scholar 1996), p. 11.

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No need to say that foreign models can be useful as raw


material, as an emphatic notification about solutions developed
elsewhere by others at another time, maybe and mostly even under
different conditions, only provided that there and then they
operated with reliable success.24 We should, hence, be aware that
no reference to outside authorities can substitute for own decision
on principle. Being necessarily partial and selective as conceived
within differing paradigms, such references are unsuitable to
replace a personal stand to be taken.
No matter how such international fora and world powers may
represent 21st-century Atlantic civilisation (self-closing in its
underlying individualistic ideology and therefore by far not safe
from the threat of a crisis some day), it is just their absolutising
universalism that makes them not only dated but reminiscent of the
ages before modern science. For in their underlying approach, they
mistake the edifice of (any) society, continuously rebuilding upon
traditions, convictions, collective and personal beliefs, for a
primitive system made up of interchangeably ready-made,
mechanically connected elements (like, e.g., standard engine-
blocs of a motor-vehicle).25

(Theological and Anthropological Foundations) As an


axiomatic starting point, it has always been obvious that

24 Cf., as a global overview with theoretical backing, by the author, [abstract] ‘Reception of
Legal Patterns in a Globalising Age’ in Law and Justice in a Global Society Addenda: Special
Workshops and Working Groups (IVR 22nd World Congress, Granada, Spain, 24–29 May
2005), ed. J. J. Jiménez, J. Gil & A. Peña (Granada: International Association for Philosophy
of Law and Social Philosophy – University of Granada 2005), pp. 96–97 & [text] ‘Transfers
of Law: A Conceptual Analysis’ in Hungary’s Legal Assistance Experiences in the Age of
Globalization ed. Mamoru Sadakata (Nagoya: Nagoya University Graduate School of Law
Center for Asian Legal Exchange 2006), pp. 21–41.
25 Cf. also—reviewing H. Patrick Glenn’s Legal Traditions of the World Sustainable
Diversity in Law (Oxford & New York: Oxford University Press 2000) xxiv + 371 pp.—by
the author, ‘Legal Traditions? In Search for Families and Cultures of Law’ [abstract] in Law
and Justice in a Global Society [note 24], p. 82 & [text] Acta Juridica Hungarica 46 (2005)
3–4, pp. 177–197 & <http://www2.law.uu.nl/priv/AIDC/PDF%20files/IA/IA%20-
%20Hungary.pdf>.

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“all the balance of the CHRISTian thought is


based on two antinomic statements. On the one hand,
the person is prior to society. On the other, public
good is superior to personal goods.”26

Not only recognitions based upon natural law—drawing


conclusions, in addition to connections obvious for common sense,
also from theological truths—but also insights drawn from social
sciences (based on anthropological, psychological, sociological, as
well as criminological investigations and empirical data) are
growingly definite in concluding that
• ordo,27 that is, human order in society, is inconceivable
without the agreed-on practice based upon the
acknowledgement of some kind of authority, and this
authority has to be founded—unless it contents itself with
a new fist-law, ensuing from actual anarchy and deviance,
tolerated as normal by now, disguised with some minimum
and superficial maintenance of public order28—through
collective experience and traditions with a commonly
shared vision of future and an ethical world-view;29
• any way of life accepted with procedural techniques in
society has to be based on values originating from the
unalienable entirety of human person. Therefore, not even

26 “Tout l’équilibre de la pensée chrétienne tient dans deux affirmations antinomiques. D’une
part, la personne est antérieure à la société. D’autre part, le bien commun est supérieur aux
biens particuliers.” Pierre Bigo La doctrine sociale de l’Église Recherche et dialogue (Paris:
Presses Universitaires de France 1965), p. 168.
27 “But it must not be imagined that authority knows no bounds […].” Pacem in Terris
Encyclical of Pope John XXIII [1963], 47.
28 “A person who is concerned solely or primarily with possessing and enjoying, who is no
longer able to control his instincts and passions, or to subordinate them by obedience to the
truth, cannot be free.” Encyclical Letter Centesimus Annus issued by the Supreme Pontiff
John Paul II [1991], 41.
29 Most expressly—first of all, from the aspect of social psychology and sociology—see,
e.g., Robert Nisbet The Quest for Community (San Francisco: ICS Press 1990), chs. 1–3. It
is to be noted that the same objection is formulated in criticism of the new doctrine in
formation on the practice of precedents. For a theoretical context, cf., by the author, ‘Meeting
Points between the Traditions of English–American Common Law and Continental-French
Civil Law (Developments and Experience of Postmodernity in Canada)’ Acta Juridica
Hungarica 44 (2003) 1–2, pp. 21–44, para. 1 & <http://www.akademiai.com/content/x
39m7w437134167l/?p=056215b52c56447c8f9631a8d8baada3&pi=1>.

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democracy is able to embody values without genuine


eternal values to implement, that is, on the sheer
foundation of ethical neutrality and the total relativisation
of values;30
• dignity and responsibility are inseparable from one
another, because the former arises from the autonomy of
the person, and the latter, from the freedom of man.
Therefore, no form of social care or generous provision of
rights can reduce the minimum responsibility to be
irrevocably borne by the person for his decisions and
actions and for the development and exploitation of all his
potentials (that is, for his conduct in private, in family
and professional life, as well as in his larger
communities);31
• as a result of the inviolable dignity and undiminishable
responsibility of the human person, r i g h t s a n d
obligations go hand in hand.32 Otherwise, reciprocity
and balance would be unthinkable,33 and the societas as
30 “With regard to civil authority, LEO XIII [in the Encyclical on the Condition of Workers
(1891), 48], boldly breaking through the confines imposed by Liberalism, fearlessly taught
that government must not be thought a mere guardian of law and of good order, but rather
must put forth every effort so that »through the entire scheme of laws and institutions […]
both public and individual well-being may develop spontaneously out of the very structure
and administration of the State.«” Pius XI Quadragesimo Anno [1931], 25. “Hence, before
a society can be considered well-ordered, creative, and consonant with human dignity, it
must be based on truth [...]. And so will it be, if each man acknowledges sincerely his own
rights and his own duties toward others.” John XXIII Pacem in Terris [1963], 35.
31 Michel Schooyans has termed—‘Droits de l’homme et démocratie à la lumière de
l’einseignement social de l’Église’ in Democracy [note 17], pp. 50–51—the process by
which newer packages of human rights are acknowledged (and, then, responsibility for them
is shifted upon the state) through global lobbying and pressurising via international
organisations as a “tyranny of consensus” which, due to its positivistic voluntarism and by
trampling on the principle of subsidiarity itself, results in an end to any genuinely
democratic thought.
32 “[M]an’s awareness of his rights must inevitably lead him to the recognition of his duties.
The possession of rights involves the duty of implementing those rights, for they are the
expression of a man’s personal dignity. And the possession of rights also involves their
recognition and respect by other people.” John XXIII Pacem in Terris [note 27], 44.
33 “Since men are social by nature, they must live together and consult each other’s
interests. That men should recognize and perform their respective rights and duties is
imperative to a well ordered society. But the result will be that each individual will make his
whole-hearted contribution to the creation of a civic order in which rights and duties are ever
more diligently and more effectively observed. Ibid., 31.

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a whole would fall apart.34 Therefore, in the last analysis,


• our social achievements are—as human freedom itself is
(if valuable at all) also a historical achievement and not
simply the product of a mere declaration of right35—by no
means built on the sand randomly formed by momentary
taste, delight and fancy, but upon the awareness of the
cognisability of our world and upon the belief that a
sensible order can be developed in it, at the heart of
which one finds the vocation of man to both recognise
the values dormant in him and, then, carry them into
effect in his environment.36
This being the case, would it not be acutely necessary to
reconsider what follows therefrom in terms of state organisation?
And shouldn’t we, responsible citizens, try to find answers to our
concerns through this realisation, instead of just relying (with
vacuous idleness, by shifting responsibility on others) upon
patterns devised by others under differing conditions, which can

34 See, for the comparative criminological analysis of the individualistic, resp.


communitarian backgrounds of the policing in the USA, resp. Japan, concluding in a
dazzling difference between the expenses invested and the results achieved, Denis Szabo
Intégration normative et évolution de la criminalité {lecture at a conference on value,
behaviour, development, modernity, or the cultural factors of development and backwardness
in development, as organised by the Institut de France [Paris] on September 16–17, 1995
[manuscript]}, as based upon the research by D. H. BAYLEY. For a Central European stand
on the complementarity of rights and obligations, cf. Alfonsas Vaišvila ‘Legal Personalism: A
Theory of the Subjective Right’ in Ius unum, lex multiplex Liber Amicorum: Studia Z. Péteri
dedicata (Studies in Comparative Law, Theory of State and Legal Philosophy) ed. István H.
Szilágyi & Máté Paksy (Budapest: Szent István Társulat 2005), pp. 557–573 [Philosophiae
Iuris / Bibliotheca Iuridica: Libri amicorum 13].
35 For one of its latest formulations, see, e.g., Robert Grant Oakeshott (London: The Claridge
Press 1990), p. 63 [Thinkers of our Time].
36 “Authentic democracy is possible only in a State ruled by law, and on the basis of a
correct conception of the human person. It requires that the necessary conditions be present
for the advancement both of the individual through education and formation in true ideals,
and of the »subjectivity« of society through the creation of structures of participation and
shared responsibility. Nowadays there is a tendency to claim that agnosticism and sceptical
relativism are the philosophy and the basic attitude which correspond to democratic forms
of political life. Those who are convinced that they know the truth and firmly adhere to it are
considered unreliable from a democratic point of view, since they do not accept that truth is
determined by the majority, or that it is subject to variation according to different political
trends. It must be observed in this regard that if there is no ultimate truth to guide and direct
political activity, then ideas and convictions can easily be manipulated for reasons of power.
As history demonstrates, a democracy without values easily turns into open or thinly

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only result in a failure for us? By claiming this, I do not mean alone
anomalies, excesses and disproportions (by, e.g., one-sided
extension of rights and competencies, which can only lead to
dysfunction and irresponsibility, moreover, to irradiating chaos),
recurring abundantly in our transition process,37 which—even if
heralded mostly in the majestic robe of the defence of
constitutionalism38—are only apt to eventually shake the
foundations of collective order, undermine its reliability and
cohesive force, shattering its foreseeability and, on the final
analysis (even if sometimes dragged out of the cloak of
constitutional justices or ombudsmen), subjecting it to the “logic”
of fist-law, where only the stronger, the more persevering and
uninhibited of us are awarded, those who resort to the arbitrament
by—maybe, just a legalistic—war.
Let us contemplate: if the ideal of the rule of law as
developed in the European continental (or German) idea of
Rechtsstaatlichkeit preserves at its focal point the maintenance of
law and order by means of statutory regulation (and, in

disguised totalitarianism.” John Paul II Centesimus Annus [note 28], 46. It should be
remarked that Schooyans [note 31], pp. 55–56, sees our days’ developments—maybe in sign
of an impending Apocalypse—as the beginning of a “total war waged against man”, because
the so-called “anthropological revolution” (p. 53)—(de)grading man from a genuine person
to sheer individual, utterly free to choose any truth, value and ethics he pleases to—
eradicates from the human being exactly what is Divine in him, depriving him from his being
an imago Dei, i.e., an image of God. And man practically becomes incapable of survival
when his own reason and will are eliminated.
37 Cf., by the author, Transition to Rule of Law On the Democratic Transformation in
Hungary (Budapest: ELTE “Comparative Legal Cultures” Project 1995) 190 pp.
[Philosophiae Iuris] as well as ‘Legal Scholarship at the Threshold of a New Millennium in
the Central and Eastern European Region’ in the present volume and, focussed on one single
issue—concealing in the guise of constitutional principles the politically motivated rejection
of coming to terms with the past in criminal law by constitutional justices as legally
irresponsible professional defenders of abstract constitutionalism in Hungary—, Coming to
Terms with the Past under the Rule of Law The German and the Czech Models, ed. Csaba
Varga (Budapest 1994) xxvii + 178 pp. [Windsor Klub] and ‘Creeping Renovation of Law
through Constitutional Judiciary?’ in the present volume, as well as, as a diagnosis of the
problems of our age, ‘Önmagát felemelõ ember? Korunk racionalizmusának dilemmái’ [Man
elevating himself? Dilemmas of rationalism in our age] in Sodródó emberiség Várkonyi
Nándor: Az ötödik ember címû mûvérõl [Mankind adrift: About Nándor Várkonyi’s work
»The Fifth Man«] ed. Katalin Mezey (Budapest: Széphalom [2000]), pp. 61–93.
38 As a case-study, cf. Catherine Dupré Importing the Law in Post-communist Transitions
The Hungarian Constitutional Court and the Right to Human Dignity (Oxford & Portland

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supplementation, through judicial decision-making guided by


principles), binding those governing and those governed alike, and
if the smooth and safe realisability of this is the purpose of the
separation between the (executive) power of the government, the
legislative (regulatory) power of the Parliament and the (decisional)
power of the judiciary, both latter controlling the former, then how
can our present scheme of the rule of law respond to challenges,
regarding which the classical system of checks & balances,
developed nearly two centuries ago in a classical way, is hardly
able to operate functionally and efficiently any longer? That is, how
can it react to the power (or sheer monopoly) of printed press and
electronic media, the pressure by big organisations, the financial
extortion by the international agents of globalisation and the crime
organised without frontiers—acting sometimes with assistance of
the state, asserting themselves increasingly arrogantly with no
responsibility, on a field practically freed from whatever regulation
but actually assisted by world-wide economic trends and newest
high-technologies? Well, the classical regime of the Rule of Law
offers neither regulation nor ideas39 to control the interference on
behalf of such new powers, weighing down heavily on our future.
Even by a benevolent comparison, all that is available does not
even reach a fraction—say, one thousandth—of the European
regulation standardising, e.g., the size of holes in cheeses. And
since we keep proudly and imperturbably thinking in terms of
stubborn principles, our eyesight still not reaches farther than the
printing press hand-operated by the heroes of classical liberty like

Oregon: Hart Publishing 2003) xx + 217 pp. [Human Rights Law in Perspective] and, in
reflection of outer—Western—criticism of the political over-activism of the first, founding
period of Hungarian constitutional adjudication, by the present author, ‘Creepeing
Renovation...’ [note 37].
39 Although focussed mostly on considerations of legal policy in present-day Hungary, Béla
Pokol Médiahatalom Válogatott írások [Media Power: Selected writings] (Budapest: Windsor
Kiadó 1995) 198 pp. is a refreshing exception in this respect. Another remarkable fact is
that a professor once at Yale, constitutionalist and not long ago the acting Attorney General
of the US, identifies two main moments as having lead to the present-day situation in the
United States of America, notably, the liberal re-interpretation of the Constitution,
undertaken by the lead of the Supreme Court, and the limitless destruction by television
(having also brought about virtual illiteracy as a side-effect). Robert H. Bork Slouching
towards Gomorrah Modern Liberalism and American Decline (New York: HarperCollins
1997) xiv + 382 pp.

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MIHÁLY TÁNCSICS (preparing in Hungary the bourgeois revolution


by means of mass journalism from the 1830s), or the channels of
communication between Pest, then alone the capital, and Szolnok,
a town by the river Tisza in the Great Plain, hardly a hundred
kilometres from the capital, a distance that could be run in a post-
chaise muddling through marshes, often threatened by
highwaymen, yet allowed, at times of good weather, by carrigeable
trails to reach its destination within some two to three days in the
1860s.40 So, it is little wonder if we are not able to rise above the
shortest re-assertion of the freedom of press by a total lack of its
regulation.

(An Irreplaceably own Task) If such is the case, what are we


to do? We are not likely to serve with a solution here and now. The
most our message can convey is that we have to contemplate about
history; and if we already know what we want, we have to look for
paths, draw lessons from human experience, take responsible
decisions, and go along the road we have chosen. No one shall take
decisions instead of us, and whatever we have once sowed, it will
be us who shall have to reap it. We have to assume responsibility
for our people, our age, our fate, our conviction and our rule of law
in the undivided collectivity of mankind, but also individually, for
the talent entrusted to each of us, for which we are accountable in
person.

40 Reference to the artists’ colony at Szolnok, actually born in result of a nostalgia-tour in


1851 by an Austrian officer of the Emperor’s army, after the defeat of the Hungarian
bourgeois revolution of 1848. The officer, painting as an amateur (AUGUST VON
PETTENKOFEN), had been so much enchanted by the landscape of the Hungarian Great Plain
that he started later on inviting also his friends to this end point of ‘Far East’—for this was
then the farthest South-East reachable at all by railroads on the European Continent at the
time, changing over the then rather inconvenient land communication. Cf. Die Szolnoker
Malerschule (Wien: G. Gistel [1975]) pp. 126 + 40 and Christine Strasser August von
Pettenkofen Die Szolnoker Bilder (Salzburg 1983) 185 pp. [Salzburg Universität,
geisteswissenschaftliche Dissertation].

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(Recapitulation) To summarise the issue, the relationship


between rights and duties cannot be but logically complementary.
They necessarily supplement each other. As none of them can be
posited without the other, no one is entrusted to select only rights
from them.
What we have claimed about the role of legal culture in
general also applies to the law’s practical action. Notably, most
decisive changes in the law’s life may take place amazingly often
through considered (re)interpretation, without the slightest
modification of the law’s posited wording. Only such silent (yet
practically irresistible) shifts, e.g., in prevailing ideas, can explain
how the ordering concepts of ‘common good’, ‘public interest’,
‘public order’, ‘public security’, ‘public health’ (etc.) that had once
set the boundaries of rights provided for by basic codes to the
individual from the early 19th century on (serving as a general basis
of interpretation and also as general clauses in limiting cases,
restricting or refusing the enforceability of rights in given
situations, thereby justifying a legal exception),41 seem to have step
by step disappeared from our juridical discourse. For what my
generation used to learn (back in the mid-sixties in both Western
Europe and Socialist Hungary) as a joint heritage of European
civilisation, has all of a sudden become dated, referred to in fact by
no one any longer. And this has resulted in a dramatic change for
relations between the public and the individual, too. In our new
cult of nothing but rights, public affairs can at most take hold in the
periphery of, or gap in-between, our increasingly expanding
individual entitlements.
Albeit in its social teaching, aware of the danger of such
dubious age-dependent fashions, the Church has been declaring its
stand more and more firmly from the third third of the 19th century
on, according to which (1) also secular institutions have to be built
on the recognition and in service of the person; in consequence, (2)
no civilisational achievement has its value in itself (i.e., even
democracy is only valuable through the values implemented and

41 Cf., first of all, by the Hungarian scholar in exile, Vera Bolgár ‘The Public Interest: A
Jurisprudential and Comparative Overview of the Symposium on Fundamental Concepts of
Public Law’ Journal of Public Law [Emory University Law School] 12 (1963) 1, pp. 13–52.

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materialised by it); (3) the dignity of human person presupposes


the undertaking of responsibility through the unity of rights and
duties, among others. Rule of law, human rights, constitutionality,
parliamentarianism and democracy? No achievement of Western
development, however sublime and enlightening they may be, is
free from criticism: their given form and output (as a few papal
encyclicals do remind us) may suffer from infantile disorders with
various excesses, that is, from mistakes and false emphases as well.
In addition, also the principles of (4) representation and
(5) p a r t i c i p a t i o n are to be mentioned, particularly to
understand the genuine foundations of democracy. For democracy
in a Christian view is not something just happening to us but rather
a chance of getting realised through true representation and
participation.42 It costs a lot, requires sacrifice, and may involve the
potential of errors in addition to its demand of time, which is
another timely source of short-run disillusionment.

(A Final Remark in Comparison) Let us consider the issue


once again, this time by recalling the dilemma of the American
supreme command in 1944, when the deployment of the first
atomic bomb in warfare had to be decided. For the radical ending
of WWII in the Far East by such a bombing would have forecast
and did also actually involve certain, yet though immense but
limited number of civil and uniformed victims on the enemy side.
In case of any other option, destroying the enemy in a protracted
jungle war would have inevitably presumed a far huger number of
victims both on the enemy and the own side, in a number and time-
schedule both uncertain and unlimited. Well, which option is more
humanitarian, which one should have been resorted to in this fatal
and tormenting dilemma, to be decided unambiguously anyway in

42 Cf., as theoretical synthesis in general, Utz [note 17], passim, and as one of the applied
fields in particular, Chantal Millon-Delsol Le principe de subsidiarité (Paris: Presses
Universitaires de France 1993) 127 pp. [Que sais-je? 2793], also put by him in a historico-
comparative context in his L’État subsidiaire Ingérence et non-ingérence de l’État: le
principe de subsidiarité aux fondements de l’histoire européenne (Chicago, London &
Toronto: Encyclopaedia britannica 1992) 232 pp. [Léviathan].

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this superhumanly dramatic choice faced by both the politicians


and the relevant general staff?43 Not too far away in time, let us
continue our reconsideration with the example of the termination of
World War Two which, dividing the world into defeaters and
defeated, burdened the task of pacifying the latter to the shoulder
of the former. The naive question may arise whether or not this has
perhaps meant that the victors’ democracy was just extended to the
liberated one? We know the answer: not in the least. For it would
have been at the formers’ own costs and by risking their own human
lives. Therefore, actually they chose the continued use of their
armed forces. And that what followed included in fact military
occupation, suspension of basic freedoms, occupying
administration with unlimited foreign power intervention,
reckoning with the past through military tribunals by the
suppression of principles of the Rule of Law and finally also a
forced “re-education to democracy” process which was originally
designed to span about one decade of transition before anything
like democracy could be implemented.44
We may have realised by now that in the Central and Eastern
European region, transition after the downfall of red dictatorship
(distinguished favourably by the Western mainstream double
measure from the brown one) took place differently. Could any

43 Cf., from the literature, Peter Weyden Day One Before Hiroshima and After (New York:
Simon and Schuster 1984) 414 pp., on the contexture, The Atomic Bomb The Great Decision,
2nd rev. ed. Paul R. Baker (Hindale, Ill.: Dryden Press 1976) viii + 193 pp., Len Giovannitti
& Fred Freed The Decision to Drop the Bomb (New York: Coward-MacCann 1965) 348 pp.
and The Atomic Bomb The Critical Issues, ed. Barton J. Bernstein (Boston: Little, Brown
1976) xix + 169 pp., with archives’ background in Barton J. Bernstein & Allen F. Matusow
The Truman Administration A Documentary History (New York: Harper & Row 1966) viii +
518 pp. and Louis Morton ‘The Decision to Use the Atomic Bomb’ in Command Decisions
ed. Kent Roberts Greenfield, Office of the Chief of Military History (Washington: U.S. Army
1960) viii + 565 pp.
44 Cf., by the author, ‘Transition to Rule of Law: A Philosophical Assessment of Challenges
and Realisations in a Historico-comparative Perspective’ in Hungary’s Legal Assistance
Experiences [note 24], pp. 185–214 in general and ‘Transformation to Rule of Law from No-
law: Societal Contexture of the Democratic Transition in Central and Eastern Europe’ The
Connecticut Journal of International Law [Hartford] 8 (Spring 1993) 2, pp. 487–505 in
particular. For the background, see, e.g., John D. Montgomery Forced to be Free The Artificial
Revolution in Germany and Japan (Chicago: The University of Chicago Press 1957) xiii +
210 pp. and Wolfgang Friedmann The Allied Military Government of Germany (London:
Stevens 1947) x + 362 pp.

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decision-maker have nearly two decades ago presented an


alternative to the democratic jungle-war, to its tiresome roughness,
pitfalls, costs, and even its disillusioningly meagre and counter-
effective self-prolonging performance? Everything considered, it
seems that there has been no genuine alternative. So this is to be
taken by us as acquired and to be fought through as our way, fate
and mission. And the sequence of generations to come has to
assume the task of incessantly caring for, protecting and eventually
perfecting it within the given frameworks but not without the sight
of the once contemplated ends.

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RULE OF LAW
Or the Dilemma of an Ethos:
to be Gardened or Mechanicised*

One of the post-dictatorship models for transition is


exemplified by total defeat with military administration and
jurisdiction, breaking past continuity through preventing local
practices to re-organise, while re-educating for democracy, as
patterned by the allied powers after WWII in Germany, Italy and
Japan, and quite another of them at the other extreme is just to
declare a full pledged rule of law scheme, put in operation from an
artificial zero point on, as made Central Europe to practice it after
the fall of Communism. Almost opposite are the costs and benefits
of either ideals, on behalf of both the party having generated the
given solution and the party whom it was generated to.1 And the fact
notwithstanding that the legacies of bygone regimes—with their
successors’ task of selecting out one of the above ideal starts to
implement upon them after their predecessors’ fall—are hardly
comparable to one another, the philosophical considerations
(together with the relevant politico-cultural and anthropological
pre-assumptions) that underlie the selected paths are already close
to appear and actually work as mutually antagonistic.
With differences characterised by the following scheme, they
are common in that both of them simply introduce a new regime

* A paper presented at the international conference on global law transfers at Umeå in


2007—[abstract] in <http://www.jus.umu.se/RoLconf/Csaba.pdf>—, forthcoming in its
proceedings as to be ed. Per Bergling & Jenny Ederlöf (Uppsala: Iustus Förlag 2008).
1 For the above’s first description in a context suggesting that there must be an explanation
to why the United States of America changed in the meantime the patterns it offered, see, by
the author, ‘Transformation to Rule of Law from No-law: Societal Contexture of the
Democratic Transition in Central and Eastern Europe’ The Connecticut Journal of
International Law [Hartford] 8 (Spring 1993) 2, pp. 487–505.

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never met and heard before, from the next moment on when the
replacement of power control has been exacted.2

US w/ Allied Powers US w/ global forces


after WWII after collapse of Communism
via military victory & occupation via full-pledged Rule of Law
through brutal force of facts through mere declaration &
institutionalisation
military administration experimentation
intervention imposed upon – no genuine transitory period
instead of democratic mobilisation
military justice (Nuremberg/Tokyo) past unfaced
discontinuation of the past continuation of past getting
w/ dissociation, dissolution & re-organised,
annihilation re-patterned & re-legitimised
re-education for genuine democracy quasi (defect) democracy as lived
through since

Their most striking difference is perhaps the in-built


cynicism and utopianism (with reminiscences of some a-historical
all-mightiness, known mostly from revolutionary honeymoon
periods,3 by the way) that predominates the solution adopted world-

2 Cf., e.g., Wolfgang Friedmann The Allied Military Government in Germany (London:
Stevens 1947) x + 362 pp.; Eli E. Nobleman American Military Government Courts in
Germany Their Role in the Democratization of the German People (Ft. McPherson, Ga.
1950) x + 261 pp. [U.S. Provost Marshal General’s School, Camp Gordon]; John D[ickey]
Montgomery Forced to be Free The Artificial Revolution in Germany and Japan (Chicago: The
University of Chicago Press 1957) xiii + 210 pp.; The Occupation of Japan Impact of Legal
Reform [The Proceedings of a Symposium] ed. L. H. Redford (Norfolk, Va.: MacArthur
Memorial 1977) 212 pp.; Dieter Waibel Von der Wohlwollenden Despotie zur Herrschaft des
Rechts Entwicklungsstufen der amerikanischen Besatzung Deutschlands, 1944–1949
(Tübingen: Mohr 1996) xx + 410 pp. [Beiträge zur Rechtsgeschichte des 20. Jahrhunderts];
Zwischen Kontinuität und Fremdbestimmung Zum Einfluss des Besatzungsmächte auf die
deutsche und japanische Rechtsordnung, 1945 bis 1950 [Deutsch–Japanisches
Symposium] ed. Bernhard Diestelkamp (Tübingen: Mohr 1996) ix + 398 pp.
3 For the expression, see Pitirim A[leksandrovich] Sorokin The Sociology of Revolution
(Philadelphia & London: J. B. Lippincott Company 1925 {reprint by New York: H. Fertig
1967}) xii + 428 pp. [Lippincott Sociological Series].

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wide today. The very fact that genuine transitory period is denied
from this dramatic change in both theory and practice and that a
full-pledged rule of law scheme is just declared to have rightly
been introduced from one moment to the next,4 will inexorably result
in a basically counter-productive effect. Namely, the new regime—
certainly with abundance in limitations and scarcity of
authorisations, and without being equipped with instruments of
safe operation, suitable exclusively to develop through new
conventionalisations while facing everyday conflicts in practical
implementation, that is, in a course demanding rather long periods
of time—will on the final analysis only re - state its own
negated past: though in new form and under new legitimacy but
with the resurgence of huge a many power relations, networks and
connections, waiting in the silent background exclusively for
getting re-organised, in order that after a while they can step by
step re-pattern and eventually also take the lead over the overall
political and socio-economic process. Otherwise speaking, the
likely outcome will be a dialectical Aufhebung, by sublating the
past (in reminiscence of the HEGELian triad of negating / preserving
/ transcending its subject). This is why and how the past may have
turned into present in a kind of presence able to define further on
as well the timely history of the region.
All this is to mean that diverging historical incidentalities in
why and under which conditions the challenge is to face may
predetermine the approach to, with the ideologisation and the
overall effect of, the whole transformation process as well.
Accordingly, military threat with the imperative of self-
defence majored in the first case and profiteering from a given
situation while extending control over the target countries was
the prime motive in the second case, even if the long-voiced

4 Compare with the declaration of the Hungarian Constitutional Court’s first (founder)
president, LÁSZLÓ SÓLYOM, messaging in sharp terms—as intervened to Constitutionalism in
East Central Europe Discussions in Warsaw, Budapest, Prague, Bratislava, ed. Irena
Grudzinska-Gross (Bratislava: Czecho–Slovak Committee of the European Cultural
Foundation 1994), p. 51—that “I am upset and irritated by the term »transition«: for how
long are we going to be in transit?! Three years is a very long time in a historic era of rapid
change. From a legal point of view, transition was accomplished [...] on October 23, 1989
[...]. Hungary must be considered to have been a law-governed state since that time [...] so
from a legal angle there is no further stage to transit to.”

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longing for returning to institutional Europe proper5 had from the


beginning offered a general framework (patterned by the European
Economic Community and fore-patterned by the North Atlantic
Treaty Organisation) for the latter, with the aim of getting
assimilated into this larger scheme by gradual steps.6 All in all, the
twisted interest shared by at least one over-weighty side of the main
partners in transformation is perhaps the main factor to explain
why and how quite a plain artificiality of the entire setting has had
to characterise the latter model of transition up to the depth.
own lives to be lost taking control over target countries
being at stake in power vacuum & amidst their
financial dependence being at stake
imposition of actors & acts lead by ancient régime survivors
military regime adoption of ready-made schemes
w/ military measures taken taken from EU and/or being on sale7
no issue of almost dispreference of
domestic national interests domestic national interests
thorough change provoked change-over of nothing but
power techniques on final account

After all, it has led mostly to the well-known scene re-


arranged while almost the same play and assertion of interests were
bound to be continued, with a partial replacement of the involved
partners. The rather urging time-schedule as speeded up during
the transformation itself with the felt need to re-join also formally

5 The countries concerned in Central Europe have in fact belonged to Europe/West


(instead of the East) for the last thousand of years, even if political deals may have
manoeuvred them to get subjected to powers of Europe/East, as it happened the last time as
an issue of the Yalta Treaty in 1945. For the whole span of a historical overview, see Jenõ
Szücs ‘The Three Historical Regions of Europe’ Acta Historica Academiae Scientiarum
Hungaricae 29 (1983) 1–2, pp. 131–184 {in parts reprinted in European Legal Cultures ed.
Volkmar Gessner, Armin Hoeland & Csaba Varga (Aldershot, Brookfield USA, Singapore,
Sydney: Dartmouth 1996), pp. 14–48 [Tempus Textbook Series on European Law and
European Legal Cultures I]}.
6 Cf. Armin Höland ‘Évolution du droit en Europe centrale et orientale: assiste-t-on à une
renaissance du »Law and Development«?’ Droit et Société (1993), No. 25, pp. 467–488.
7 Cf. Ugo Mattei Introducing Legal Change Problems and Perspectives in Less Developed
Countries [World Bank Workshop on Legal Reform in Washington, D.C. on April 14, 1997]
[intervention, manuscript] (Berkeley & Trento 1997) 19 pp.

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Europe proper again conditioned huge masses of foreign normative


materials to be simply implanted without either the proper care of
or the sheer ability to adaptation and refinement made. The rule of
law framework that had developed at a relatively early period of
transformation (by, literally speaking, preceding the total collapse
of Communism and thereby also the start of any rule of law scheme
coming into genuinely full operation) with the overwhelming
legalistic view and the accentuatedly juristic treatment of
the process itself (in reaction to former legal nihilism, imbued with
any dictatorship, and in response to the widely voiced popular
longing for putting an end to the over-politicisation of any daily
issues, characteristic of the Communist era) could only contribute
to a timely outcome that after one or two terms of free-elected
parliaments and governments heralding both the change-over and
the foundational change of the past regime, old-new forces of
basically the ancient régime may now take the lead again with
renewed and seemingly legitimate call-words but in fact exposing
the country to the free market of the global capital without due (or
duly negotiated) consideration to local interests to be anyhow
asserted and protected.
Or, on final analysis, reverse was the sense and the ratio of
relative costs in investment and benefits gained therefrom also in
terms of which side was to take the burden for all this and had the
most likely chance of profiteering from such a fore-planned
situation.

huge costs of military almost no costs of control


intervention
in short-term no issue of impact decreasing
perspective upon after-war living standards &
living standards loss of national fortune
in long-term radical renewal uncertainty about future
perspective w/ success in return w/ hopes &
uncovered promises

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In a broader historical perspective, all this may have had


repercussions on the changing ways Rule of Law has been
understood and in fact implemented then and now, resulting in
crucial crossroads, too, as far as the science-philosophical and
science-methodological issue of how to conceptualise a historical
idea evolved in mission to play a fermentative role in channelling
legal practice as an ultimate ideal (to be equally cultivated
intellectually and treated as a part of the very ontology of social
existence)8 is concerned. For quite opposite presuppositions can be
reconstrued from those having prevailed as its two historical
instances then and now, of the transition-to-the-rule-of-law
process.

concrete-historical abstract-absolutistic
understanding understanding
of the Rule of Law of the Rule of Law
as if CARL SCHMITT:9 universalism
history w/ideals is unique, from the outset
bound to conditions
as if EDMUND BURKE: a case of nothing more than
achievements must have been mere will, determination &
fought for & through proclamation
as if sociologism: as if mechanical (quasi biological)
we, individuals & society determinism:
are all culturally rooted products for any society under any times &
conditions

8 For the ontological status and significance of juristische Weltanschauungen [lawyerly


ideologies] in the law’s existence, see, by the author, The Place of Law in Lukács’ World
Concept (Budapest: Akadémiai Kiadó 1985 {2nd reprint ed. 1998}) 193 pp.
9 Cf., by the author, ‘Change of Paradigms in Legal Reconstruction (Carl Schmitt and the
Temptation to Finally Reach a Synthesis)’ in Perspectives on Jurisprudence Essays in Honor
of Jes Bjarup, ed. Peter Wahlgren (Stockholm: Stockholm Institute for Scandinavian Law
2005) [= Scandinavian Studies in Law 48], pp. 517–529 & Rivista internazionale di
Filosofia del Diritto [Roma] LXXXI (ottobre / dicembre 2004) 4, pp. 691–707.

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Such a sharp difference in underlying presuppositions is to


explain why in the former case a true and, in many features,
original democratic arrangement was the outcome while for the
time being at least, a sham and from the very beginning defected
politico-legal culture is on the way of getting established in the
latter case, just as if it was to exemplify nothing but the nivelling
down of values when being drifted by streams at hand,
accompanied by low efficiency in quality selection (prophesised by
the once “revolution of the masses” described by ORTEGA Y GASSET
almost eighty years ago10).

II

Practice in Central & Eastern Europe is varying in terms of


whether or not the Rule of Law is conceived of as a set of
expectations to be considered categorically absolute as quasi
exhaustively ready-made and gaplessly codified, or it is taken as a
most respectable ideal having once developed in response to
particular challenges in given cultures under given historical
conditions, that is, as an art of how to balance amongst differing,
moreover, conflicting values and interests within its own ethos or,
otherwise speaking, a strive never to end and close indeed, as it is
nothing more ambitious than a never-to-stop learning process
itself: a compound of various viewpoints and shifts, layers and
levels, which surfaces new features re-repeatedly, once the field of
everyday routine in either typical situations or mostly used
solutions is left, for new challenges it is to meet.11

10 José Ortega y Gasset La Rebelión de las masas (Madrid: Revista de occidente 1930) 315
pp. {Revolt of the Masses authorized trans. (London: Allen & Unwin & New York: Norton
1932) 204 pp. as well as trans. Anthony Kerigan, ed. Kenneth Moore (Notre Dame:
University of Notre Dame Press 1985) xxxi + 192 pp.}.
11 For the perception of how much that what is now clearly seen—even if wrongly—as an
unprecedented historical exception in a local (or regional, but in any case: epoch-making)
context, can be transposed into a modality further adapted from—when allegedly copying—
a past exception made somewhere else, a modality which had already been amalgamated and
pacified into routine, cf. Eric A. Posner & Adrian Vermeule ‘Transitional Justice as Ordinary
Justice’ Harvard Law Review 117 (January 2004) 3, pp. 761–825 & in <http.//www.law.
uchicago.edu/academics/publiclaw/resources/40.eap-av.transitional.both.pdf>.

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Accordingly, the duality of understandings as portrayed just


above is to repeat itself here.

Rule of Law Rule of Law


as historically particular an ideal as abstract-universal claim
own achievement in response to recipe once ready-made somewhere
own challenges as closed & perfected by someone
“not a pact of collective suicide”12 to be just enforced at whatever price
part of the culture specific for us a minimum condition to be meted out
to be cultivated to be respected unconditionally
creatively & responsively as number one criterion of survival
in order to be suited to be lived with in membership of a given club

Warning against the type of a “honeymoon period” a-


historicism which is also to refute scholarly achievements of the
last century especially regarding the legal sociological and
anthropological analysis of the classical cases of transplantation
and of their well-developed Rezeptionslehre13—concluding to that

12 “The Rule of Law is not, and cannot be taken as, a collective pact of suicide”—as taught
by JOHN FINNIS in Budapest on 19 February 1990, at an international conference on “Rule
of Law / Rechtsstaatlichkeit” convened by the political party FIDESz (now the strongest in
opposition to the old-new Communists in the parliament), referring to the consideration
above as practically the sole and exclusive message our region (under quite new conditions
never met before, as facing transition from a subversively brutal and lasting dictatorship)
may draw as reasonably useful from the library-wide Western literature on the Rule of Law.
For a background, see his Natural Law and Natural Rights [1980] (Oxford: Clarendon Press
1988), particularly on p. 175 [Clarendon Law Series]. For the context, compare also with, by
the author, Transition to Rule of Law On the Democratic Transformation in Hungary
(Budapest: ELTE “Comparative Legal Cultures” Project 1995) 190 pp. [Philosophiae Iuris].
13 Cf. primarily Kálmán Kulcsár Modernization and Law (Budapest: Akadémiai Kiadó
1992) 282 pp. as well as András Sajó Társadalmi-jogi változás [Socio-legal change]
(Budapest: Akadémiai Kiadó 1988) 211 pp., and the long series of case studies like, e.g.,
June Starr’s Dispute and Settlement in Rural Turkey An Ethnography of Law (Leiden: Brill
1978) xvi + 304 pp. [Social, Economic, and Political Studies of the Middle East 23] and
Westliches Recht in der Republik Türkei 70 Jahre nach der Gründung, ed. Heinrich Scholler
(Baden-Baden: Nomos 1996) 174 pp. [Arbeiten zur Rechtsvergleichung 181].

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mere acts of will (i.e., of power imposition) cannot end in kinds of


borrowance that could organically integrate into the working body
of the law in a way suitable to exert an impact upon it as
comparable to the efficiency of its functioning in its original
context—, only very few researches have had the vocation to call
scholarly attention to the facts of the past, extremely rich in
historical messages.
One trend of them was to relate on-going processes and their
ideologisation to the criticism formulated on the “Law and
Modernization” movement,14 to the major factors of why it had
been bound to (more overall than partial) failure in a mostly Latin
American context,15 and also to its survival, moreover, transposition
in renaissance in the conceptualisation and methodological
preparation of the changes to be provoked by now in a new terrain,
that of Central & Eastern Europe;16 mostly and significantly
because of its embeddings in a kind of ethno-centrism, standing for
the abstract-universal view of global approaches, looking at
societies as ones without own past and tradition, and therefore apt
for being treated in a quasi mechanical manner.
Another trend tried at reconstructing what the need for a
Rule of Law could at all be in history, where and how and as a
result of what challenges it has evolved, ending by responding to
the dilemma whether it is a cultural ideal to be aspired for, through
measuring pros & cons and weighing and balancing amongst its

14 Cf., as an early monographic criticism upon it, James A. Gardner Legal Imperialism
American Lawyers and Foreign Aid in Latin America (Madison: University of Wisconsin
Press 1980) xii + 401 pp.
15 For the main pieces of criticism, cf., e.g., David M. Trubek ‘Toward a Social Theory of
Law: An Essay on the Study of Law and Development’ Yale Law Journal 82 (1972) 1, pp.
1–50; Thomas M. Franck ‘The New Development: Can American Law and Legal Institutions
Help Developing Countries?’ Wisconsin Law Review 12 (1972) 3, pp. 767–801; David M.
Trubek & Marc Galanter ‘Scholars in Self-estrangement: Some Reflections on the Crisis in
Law and Development Studies in the United States’ Wisconsin Law Review (1974) 4, pp.
1062–1102; John Henry Merryman, David S. Clark & Lawrence M. Friedman Law and
Social Change in Mediterranean Europe and Latin America A Handbook of Legal and Social
Indicators for Comparative Study (Stanford: Stanford University Press & Dobbs Ferry, N.Y.:
Oceana 1979) xvi + 618 pp. [Stanford Studies in Law and Development].
16 Cf., as a most telling example, Juan J[osé] Linz & Alfred Stepan Problems of Democratic
Transition and Consolidation Southern Europe, South America, and Post-Communist Europe
(Baltimore: Johns Hopkins University Press 1996) xx + 479 pp.

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conflicting aspects even if never attainable in an airily full


completion or, as arrived at present-day conditions with well-
established standards both internationally and domestically,
whether it is just a pre-set set of clearly formalised normative
requirements which are to be simply abided by, strictly and
formally, and under any conditions.
Mitigation in-between was perfected by a third direction,
casting light on the basic differences in underlying mentalités
juridiques17 between the two main historical manifestations of the
same root idea,18 namely, in the Rule of Law proper, developed
in cultures of the Common Law, on the one hand, and in form of
Rechtsstaatlichkeit in arrangements of the Civil Law, on the
other. For justiciability with open ending if due process of law is
also encountered stands for the former, whilst formal security of/in
law trusted in mere enactments for the latter one. Paradoxically,
albeit completed perfection of the law as enacted without gaps and
waiting for nothing in addition to quasi mechanical an application
spirits the latter,19 mostly the former is being used now in global
mass transfers as a closed set of requirements codified almost up to
the smallest details.20

17 An expression by Pierre Legrand, e.g., in his fabulous stand to be taken nonetheless


seriously in his ‘European Legal Systems Are not Converging’ The International and
Comparative Law Quarterly 45 (January 1996) 1, pp. 53–81 and as synthetised in his Le
droit comparé (Paris: Presses Universitaires de France 1999) 127 pp. [Que sais-je? 3478].
Although hidden in reconstruction (by the example of German and English languages)
of how differing terminologies as coming from differing word uses and cultural
understandings are to represent Civil Law and Common Law respectively, cf. the pioneering
characterisation by Peter Sack ‘Law & Custom: Reflections on the Relations between
English Law and the English Language’ Rechtstheorie 18 (1987), pp. 421–436.
18 Cf., by the author, ‘Legal Traditions? In Search for Families and Cultures of Law’ in Legal
Theory / Teoría del derecho Legal Positivism and Conceptual Analysis / Postivismo jurídico
y análisis conceptual: Proceedings of the 22nd IVR World Congress Granada 2005, I, ed.
José Juan Moreso (Stuttgart: Steiner 2007), pp. 181–193 [ARSP Beiheft 106] & Acta
Juridica Hungarica 46 (2005) 3–4, pp. 177–197 & <http://www.akademiai.com/content
/f4q29175h0174r11/fulltext.pdf>.
19 Cf., by the author, ‘Varieties of Law and the Rule of Law’ Archiv für Rechts- und
Sozialphilosophie 82 (1996) 1, pp. 61–72.
20 See, by the author, ‘Reception of Legal Patterns in a Globalising Age’ in Globalization,
Law and Economy / Globalización, Derecho y Economía Proceedings of the 22nd IVR World
Congress, IV, ed. Nicolás López Calera (Stuttgart: Franz Steiner Verlag 2007), pp. 85–96
[ARSP Beiheft 109].

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III

As it has since long been established by legal sociology, and


then, by legal hermeneutics as well, a legal system in operation is
by far more than a mere skeleton made up of formal enactments. In
fact, it is a working unit of formal and informal components, upon
the basis of some legal culture, with an adequate tradition in the
background.21 As it has been argued for exactly by Scandinavian
legal realism,22 rules, either enacted or casually reconstru(ct)ed,
are sheer indicators of kinds of underlying normativity already in
operation,23 from which they can surface as icebergs’ visible tops at
the most. All in all, transfers and impositions risk of being wedged
in a contexture having been and maybe also unchangedly
remaining alien to them, either detaching themselves from—as an
external interference with (and as cast out of)—the target system or
decomposing the system itself, by re-routing its further
development on an artificial (forced) path, rended off the system’s
original culture and tradition.
The illustration below clearly shows that no approach to a
working legal system can be reduced to a given quantum of enacted
rules as mappable out from any formal doctrine on the sources of
the law. Or, rules provide only basic guidance and mark mere
directions, specifying the terrains and channels of what would
follow in judicial weighing, argumentation and reasoning. This is
the average condition for all well-developed legal arrangements
stabilised and also crystallised in practice, even if not apparent for
the first look. Consequently, at dramatic times when enacted rules
are changed over because of a revolutionary new start or mass law-
import, underlying social practices as well as skills & sensitivities

21 Cf. Comparative Legal Cultures ed. Csaba Varga (Aldershot, Hong Kong, Singapore,
Sydney: Dartmouth & New York: The New York University Press 1992) xxiv + 614 pp. [The
International Library of Essays in Law & Legal Theory, Legal Cultures 1].
22 For a local overview (with some texts reproduced for text-book use), cf. Scandinavian
Legal Realism / Skandináv jogi realizmus ed. Antal Visegrády (Budapest: [Szent István
Társulat] 2003) xxxviii + 160 pp. [Philosophiae Iuris / Jogfilozófiák].
23 For the latest theory on the core of juridicity, cf. Enrico Pattaro The Law and the Right A
Reappraisal of the Reality that Ought to be (Dordrecht: Springer 2007) xxxiii + 457 pp. [A
Treatise of Legal Philosophy and General Jurisprudence I].

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& adaptations in/through judicial practice will also loose ground,


while conventions and conventionalisations destined to both filling
their gaps and making such a skeleton of rules socially liveable are
to gain ground in years—perhaps decades and long series of
decades24—until the working legal system can be said to fit to
rightly expectable expectations.

enacted rules

conventions &
conventionalisations

In the meantime, anything can happen on behalf of those who


are determined enough to take advantage of any chance to avail,
only provided they are endowed with less scruples.25 Partly the
overall tragedy of Russia after the fall of Communism can also be
attributed to the shakening of the regulation on the top and thereby
to the collapse of the old regime which all its Byzantic–Asiatic/
Mongolian–Bolshevik complexity notwithstanding, may well have
been rather meagre but in any case in a position to assure the mere
survival of the populace on a basic level.26
24 Meaning centuries, in case of a solid status in law, e.g., of the monarch in England, is
reached.
25 Cf. also as mirrored by a Lithuanian case-study, by the author, ‘Rule of Law between the
Scylla of Imported Patterns and the Charybdis of Actual Realisations (The Experience of
Lithuania)’ and ‘Rule of Law – At the Crossroads of Challenges’, both in the present volume.
26 Stephen F. Cohen Failed Crusade America and the Tragedy of Post-Communist Russia
(New York & London: W. W. Norton & Company 2000) xiv + 304 pp. Compare also with its
essayistic reviewing by the present author in his ‘Failed Crusade: American Self-confidence,
Russian Catastrophe’, also in the present volume.

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More to the point are some examples taken from Hungary’s


recent history. Namely, by the forceful push of a doctrinarian
libertinist course during the early years of the first free-elected
government after the fall of Communism, police was intimidated to
use arms in fact, so it happened more than twice that young
policemen on night duty were killed by thieves of old cars of
extremely low value otherwise.27 – The legalistic overtone had
pervaded government to such a depth that after half a century of
Soviet occupation it had no effective means of controlling national
security, for instance, starting by officially asking any of the
Hungarian diplomats, army and police generals in service whether
or not they had ever been and/or continue being an agent of any of
the network of, say, Soviet secret agencies. – And over-enrichment
without legal title that might justify its volume could go on
uncontrollably all through and practically up to our days, as all the
successive bills presented till now to wedge at least posterior
measures guaranteeing minimum transparency in the process of so
called privatisation (ending, by the way, in the loss of two-thirds of
the national fortune without due return in direct financial assets or
indirect economic benefits) were equally rejected through an over-
activist constitutional adjudication.
It is much telling about the differences of the underlying
mentalités juridiques in play that instead of the continental manner
of approaching any issue as a problem to be solved directly in and
just through the law, the most useful American suggestion ever
addressed to my government on my query28 was exactly to evade
searching for direct paths and especially ones formulated in and
through the law. Only to mention two instances: instead of posterior
cleansing, the introduction of a physical fitness test was advised to

27 Especially in small towns at the dawn, probably by criminals coming from our Eastern
neighbourhood, where used Zhigulis of a current Hungarian value of hardly more than
US$2000 had still a good market.
28 When in addition to my positions at the academia and universitas I was to serve as a
member of the Advisory Board to the Prime Minister of the Republic of Hungary between
1991 and 1994, such and similar were the most sparkling ideas we got during our frequent
visits from our partners at the US Embassy in Budapest or, mostly, the US Department of
State, the Head of the Joint Chiefs of Staff as well as the National Security Council in
Washington.

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somewhat rejuvenate those in the highest army and police ranks


with dubious past loyalty, on the one hand, and the US-modelled
use of questionnaires in re of so called national security sensible
positions, that is, voluntary self-offering provision of all data
needed to enable human resources management to begin on the
relevant field was conceived as solving the problem outlined in the
former paragraph, on the other.
Well, all this is standing for the following realisation: while
substantively formulated paths may easily be found as
problematic, procedural ways are by far more openly neutral as
withstanding and excluding any questionability. Otherwise
speaking, in cases at hand as those exemplified above, Civil Law
methodology mixed with practices known in Common Law may
prove to be by far more practicable and smoothly functioning than
just facing the issue as a challenge to anyone’s right to be either
extended or limited. That is, the same problematisation in the
pragmatism of an object-language as transposed into the law’s
normatively frameworked meta-language may feature up and, in
fact, serve the most diverging, moreover, even antagonistic
characters, respectively, goals, in function of the (substantive &
procedural) directions and (institutional) channels chosen and
used, thereby pre-selecting the legal technicality mastering the
given field.29

IV

Whether or not the new language happens to be


predominantly American, i.e., formulated in one of rights and
human rights, and how much the borrower’s peculiar technicality
and procedural approach segmentalises and departmentalises, or
even dissolves, the common responsibility once born for the res
publica’s sake even vivid under the old regime, is another issue
that needs to be examined alongside the scholarly treatment of the

29 For the transforming magic built in law, cf., by the author, ‘Theory and Practice in Law:
On the Magical Role of Legal Technique’ Acta Juridica Hungarica 47 (2006) 4, pp. 351–372
& <http://www.akademiai.com/content/j4k2u58xk7rj6541/fulltext.pdf>.

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movements of Law & Development, Law & Modernisation, as well


as within the scope of globalised legal transfers.
Accordingly and most importantly for the region, a new
reality risks of having become the mainstream under the aegis of
the new demands of the rule of law after the fall of dictatorship, and
this is the rivalry amongst state institutions. Under their new
legitimacy, parts and branches in exercise of state power—
Parliament and Constitutional Court, Government and the Supreme
Court, as well as the series of Ombudsmen—are even now (after
almost two decades past) to fully accomplish to the farthest extent
(by over-exhausting what is inherent in) their legal status while
step by step also extending their respective competences up to the
point they can reach at all, with an exclusively sectoral and
eminently narrowed view of their own chances and availabilities,
but without any intent of either sensitively safeguarding overall
common (i.e., national) interests or entering into co-operation with
any other branches of the state machinery for such a (legally less
definable and posteriorly less accountable) purpose. Having this
solitary attitude in mind, the disappointing outcome cannot be but
a kind of practical anarchy, casting a disfavourably ambiguous
light on the popular understanding of what the Rule of Law is and
can at all be for, by now starting to be more liking to the once
Communist myth and propaganda about a better future than to what
it appeared to be as serving for two decades ago, when it had
become the call-word as a counter-symbol by which the ultimate
unsupportability of all forms what we had once known as the
“actually existing system of Socialism” could be provingly shown.
Eventually and in any case, as far as the way of mastering (or
the caring for humility toward) the instrument is concerned, a
choice has finally to be made between the attitudes of a circus
trainer and a gardener.
This very option concerns most directly the final conclusion
by which the criticism upon the main relevant American trends has
ended in its due deliberation. Notably, ethno-centrism and cultural
imperialism have been just two instances of the key-words to cover
this a-historical new utopianism which is just expressive of the
contemporary tendencies at globalisation through all-thorough

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universalisation.30 Or, the critical mass of papers collected by


World Bank bibliographies is alternating in a basic choice to be
made between two directions when taking a final stand: either the
pattern of a circus trainer in an abstract understanding of the
Rule of Law, transmitting and enforcing his/her own will as
previously determined and decided, because taken from his/her
home, or the example of the gardener in a historically particular
and locally singular understanding of the Rule of Law, a gardener
who is (1) in respect of the target culture as given (by cultivating
its soil and planting its plants); therefore is (2) to assist its
particularities to further develop (instead of any of his/her fixed
idea or experiment/experience he/she mediates as made/gained by
others at some other place at another time, to be simply transferred
and imposed upon); in conclusion of which (3) the Rule of Law as
a scheme cannot be more than a continued learning programme for
all those involved (that is, equally for once pioneers of having
historically formed it and past students having grown in the
meantime to become masters themselves in equal status with the
former) at the most.

In any case, and especially in Central Europe with active


constitutional adjudication now, there is a temptation at
substituting past nihilism of the rule of law31 to a kind of
30 For the basic criticism upon the trends of “Law & Development” and “Law &
Modernization”, cf. note 20.
As to the tendency of globalisation through universalisation as a specific mentality
inherently characteristic of the United States of America as an imperially big country,
therefore by far more sensitive to core issues than to small-size subtleties, cf., by the author
{reviewing Paul F. Campos Jurismania The Madness of American Law (New York: Oxford
University Press 1998) x + 198 pp.}, ‘Joguralom? Jogmánia? Ésszerûség és anarchia
határmezsgyéjén Amerikában’ [Rule of law? mania of law? on the verge of rationality and
anarchy in America] Valóság XLV (2002) 9, pp. 1–10 & <http://www.valosagonline.hu/
index.php?oldal=cikk&cazon=326&lap=0>.
31 Cf., by the author, ‘Liberty, Equality, and the Conceptual Minimum of Legal Mediation’
in Enlightenment, Rights and Revolution Essays in Legal and Social Philosophy, ed. Neil
MacCormick & Zenon Bankowski (Aberdeen: Aberdeen University Press 1989), pp.
229–251.

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fetishism of the same rule of law,32 which may further strengthen


the dependence of target countries on pattern-following, and
thereby weaken their creative forces and sense of self-esteem and
self-responsibility, vitally needed for their successful recovery.
After all, in present-day societies, the variations to the ideal
of the Rule of Law as described in the first two paragraphs in
characterisation of post-WWII developments can be best typified
by the illustration below. No need to emphasise that this very
typification is centred on the transition-to-rule-of-law
understanding of the Rule of Law as a most purist and formalist,
simplistic and excessive—neophyte—type exemplified by the path
the Constitutional Court of Hungary had chosen in as unilaterally
enforced upon the country, which is then compared to the by far
more matured and balanced master type formed in the wake of
transiting to rule of law after WWII, demonstrable by the
jurisprudence of the Constitutional Court of Germany.

32 In acknowledgement of both the Central & Eastern European lawyerly nostalgic ideal of
the rule of law as reflected back to its respective pre-war past and the practical want of any
impact upon it by the after-WWII continental (Western) developments in both judicial style
and patterns of reasoning, in respect of both the latter’s ways and sources of inspiration (as
exemplified particularly by the coming into fore of reasoning by principles; a renewed
sensitivity towards the demands of natural law, especially in its form of “the nature of
things”; and the growing constitutionalisation of issues), cf., in addition to the author’s
contributions—‘Development of Theoretical Legal Thought in Hungary at the Turn of the
Millennium’ in The Transformation of the Hungarian Legal Order 1985–2005 Transition to
the Rule of Law and Accession to the European Union, ed. Péter Takács, András Jakab &
Allan F. Tatham (Alphen aan den Rijn: Kluwer Law International 2007), pp. 615–638, on
the one hand, and ‘Meeting Points between the Traditions of English–American Common
Law and Continental-French Civil Law (Developments and Experience of Postmodernity in
Canada)’ Acta Juridica Hungarica 44 (2003) 1–2, 21–44 & <http://www.akademiai.com/
content/x39m7w437134167l/?p=056215b52c56447c8f9631a8d8baada3&pi=1> &
<http://www.akademiai.com/content/x39m7w437134167l/fulltext.pdf>, on the other—,
Zdenek Kühn ‘Worlds Apart: Western and Central European Judicial Cultures at the Onset
of the European Enlargement’ The American Journal of Comparative Law 52 (2004), pp.
531–567.
As to the conflicted role played by the Hungarian Constitutional Court, at the same time
having arbitrarily stipulated what the Rule of Law had to stand for in Hungary, and then,
making its own unchallengeable but usurpated outcome transubstantiated into an ultimate
goal and sine qua non, cf., by the author, ‘Creeping Renovation of Law through Constitutional
Judiciary?’ in the present volume.

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German Constitutional Court Hungarian Constitutional Court


balanced caring past nihilism
for basic constitutional values changed over by fetishism
bound to nothing but its Basic Law “elegantly flying to and fro above”33
coming from below partisan forum
in respect of expectations edicting on ultimate choices & values
multilateral unilateral
democratic participation democratic participation
w/ profession w/ profession
included if feasible excluded on principle
legitimacy searched for legitimacy
incessantly drawn from mere status
past discontinued past continued
law is seen suggesting pattern-following
in totality of its working w/ weakened creative forces
in implementation & adaptability in adaptation

Accordingly, on the one hand, in the after-WWII mature


t y p e , the idea of the Rule of Law comes—symbolically
speaking—to the fore from the grass, as the outcome of a widely
felt and consented need from below, on the bottom. Therefore it
preserves all through a rather sensitive relationship to the
populace, in the widened sense of democratic participation. Or,
under the aegis of the rule of law anything can be done in
realisation—and, concludingly, only provided—that vivid
practicing is a function of its continued popular support. Or, its
smooth functioning is inherently preconditioned by moving in
parallel with rightly felt popular expectations, in the sense at least
that the Rule of Law is not to become a self-conceited partisan
forum of pre-determining political paths and national policies, of
reforming morals and edicting on values, but will remain cautious,

33 Quoted from one of the Constitutional Court Justices of the first term reporting on their
activity’s fruits, Imre Vörös in [as interviewed by] Gábor Halmai & Csaba Tordai ‘»kevesebb
lesz az elegáns röpködés a jogrendszer fölött«’ [»There will be less elegant flying to and fro
above the legal system«] Fundamentum 1999/2, p. 68.

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neutral and well-balanced by being bound solely to its Basic


Law—not owned by the country’s Constitutional Court but
respected as the ultimate foundation stone for the life-span of all
the citizen’s common Republic—when decisions are to take.
Therefore the guardian of constitutionality does not dissociate itself
either from the people and/or from the relevant profession(s).
On the other hand, the after- Communism type as
favoured mostly by Open Society specialists and forces of
globalism has unequivocally opted to formalism and strict rule-
positivism whenever refuting interpretation against its creative
innovation is at stake. For instance, early enough to pre-defining
the entire course and end-result of transition, the Hungarian
Constitutional Court took a stand in what was an artificially erected
contradiction between so called legality and justice,34 in terms of
which it preferred foreseeability as the sole guarantor of formale
Rechtssicherheit—arriving from formal security in/of law also to
rule-of-law continuity with a past based upon total denial of
anything of the rule of law—to the detriment of any material or
substantive value. Therefore and in a rather unforeseeable way, it
used to concluding to the unconstitutionality of several dramatic
issues (bills & laws) based upon nothing but its imagined virtual
“invisible constitution”, or false references to solutions adopted by
“civilized nations” or, if any constitutional clause was named and
identified as a source at all, the mere self-description of the Republic
of Hungary as “an independent, democratic state under the rule of
law.”35 Such a way it could certainly become the marshalling power
34 For differing solutions reached by neighbouring contries, cf. Coming to Terms with the
Past under the Rule of Law The German and the Czech Models, ed. Csaba Varga (Budapest
1994) xxvii + 178 pp. [Windsor Klub].
35 Constitution as the Act XL (25 June 1990), Article 2, Section 1.
It is to be noted that the Hungarian Constitutional Court treated this clause as well, as
the basis to derive whatever argument for its politically activist and interventionist
arguments from, the fact notwithstanding that the “rule of law” notion defies any legally
unambiguous definition.
For the Court’s nine starting years of marshalling the frameworks and paths of transition,
see the preceeding note. For the relative openness of anything of the Rule of Law both as an
ideal and as a given solution, only weighable within individual balances hic et nunc and in
concreto in a given legal arrangement as a whole, see Richard H. Fallon, Jr. ‘»The Rule of
Law« as a Concept in Constitutional Discourse’ Columbia Law Review 97 (January 1997) 1,
pp. 1–56.

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of after-Communism transition in Hungary, forecasting its


degeneration into unconditional continuity, which could after all
solidify old political forces to come back as new ones endowed also
by its new rule-of-law legitimacy now.
Amidst changing times and political preferences in
governance, such an approach to the Rule of Law did never strive
to popularity or participation in democratic processes. It was too
contradictory to be able to convince anyone or to have its voice
heard as one of the series of positive feedback, out of which a
nation’s destiny can be formed. In many cases constitutional
adjudication took a course running counter majorities in the public
sector such as the parliament, government, political parties, as well
as the academia and the universitas, in full consciousness of only
one single fact: it is not subjected to any control, as its decisions
are of a constitutional force eo ipso, so its unilateral acts are made
unquestionable from the outset.
Or, the very idea of the Rule of Law is reduced here to the all-
mightiness of the Court’s uncontrollably discretionary power. For
instead of caring for common advance and destiny of a people, such
a constitutional adjudication sufficed itself edicting its positions as
if it were to hammer on row materials, acting in a fore-granted
security that the kind of constitutionality it presents as the last
value for a nation’s survival is from the very beginning inherent in
and embodied with it.
Under such conditions,36 rebirth of the vitality of DICEY’s
thought about public opinion as the ultimate support of any
progress achieved in law37 is a lesson still to be learned; the fact
notwithstanding that all various forms by which the idea of the Rule
of Law have till now been institutionalised do themselves display a
strong civilisational value.

36 The issue of whether or not conditions developed do allow consolidation of a democratic


setup is analysed in broader social science terms by Kálmán Kulcsár ‘The New Political
System and Hungarian Reality’ Angewandte Sozialforschung 24 (2006) 3–4
[»Asphyxiation«], pp. 187–200.
37 By Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution
(London: Macmillan and Co. 1885) vii + 407 pp. & Lectures on the Relation between Law
and Public Opinion in England during the Nineteenth Century (London: Macmillan and Co.
& New York: The Macmillan Co. 1905) xx + 503 pp.

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THE BURDEN OF THE PAST


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WHY HAVING FAILED IN FACING


WITH THE PAST?*
Taking a look in general at the progress of your professional
life, one can see that it has been steadily advancing ever since. You
have achieved almost every peak in scholarship in your own field of
study. Mastering several languages you have taught and conducted
research in Australia, in Japan, in Scotland and America. As an
active member in various scholarly associations and author as well
as editor of a great number of publications, you are a regular
participant at international congresses. You are a professor at the
Faculty of Law of the Pázmány Péter Catholic University of
Hungary and the director of its Institute for Legal Philosophy.

How would you describe the family background, the school


and the intellectual milieu that have contributed to this outstanding
accomplishment? How did you endure the decades of Communist
rule?

My father shifted from the family tradition of manufacturing


coaches to the construction of cars, earning professional, human
and social authority in the fields of automobilism, motor sports and
both civil and military aviation. I was born into a harmonious,
hardworking family with a responsibility for the public as well.
When the Communists took power in Hungary, I was a young child
going to elementary school. Church schools were liquidated and
then our family company fell victim to nationalisation. Under the
Communist regime I got to know primitivism and blinded narrow-
mindedness. Our commitment to the nation’s fate with the cause of
Catholicism and the fact that we could, even amidst the

* In its first version, ‘Miért maradt el a múlttal szembenézés, az újrakezdés beteljesülése?’


[Why have we still failed to face with the past and missed a restart?] [Interview of Anna
Banovits] [shortened] Magyar Nemzet LXVI (December 13, 2003, Saturday) 290,
»Magazin«, p. 24 and [in full] PoLíSz (June–July 2004), No. 77, pp. 3–8 & <http://www.
krater.hu/site.php?func=polisz&file=cikkek&cnr=290> & <http://www.krater.hu/
pprint.php?print=290>.

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persecutions, help others who were even more miserable than us,
gave our life a deeper meaning, a feeling of integrity. I certainly met
impressive people at school, but it was first of all my stubborn
resistance that determined my development. My early interest in
technical construction was soon replaced by defiant self-
expression, primarily in writing poems and aphorisms. Having
finished secondary school, I could not choose but spend thirteen
months working as a miner in the neighbourhood of my native town,
if I wanted to get to university at all. This was the only way to “pay
the penalty” for the “sin” of having belonged to the ‘exploiting class’
(according to the stigma of the age). Just by the time when I could
manage at last to get back from the far-away Faculty of Mine
Engineering of the Technical University in Miskolc to my
hometown, the Faculty of Law at the University of Pécs, a political
police action was to be launched against the Regnum Marianum
clerical community dedicated to the education of the youth. Priests
were unlawfully arrested on trumped-up charges of alleged
“adulteration” of the youth and complot against the state and social
order of the peoples’ democracy. As part of the action, the secret
police started to threaten and harass also me, continuously: I was
subjected to interrogation, accused of ‘subversive activity’ aimed at
‘overthrowing’ the socialist order. What they longed for was
obviously a spectacular lawsuit. Such a conflict with the authorities
of the Ministry of the Interior, of course, rendered it inconceivable
for me to remain at the university after completion of my studies.
Fortunately, help arrived soon, in the person of Professor KÁLMÁN
KULCSÁR who used to lecture at Pécs at the time and was an
acclaimed authority in legal sociology which, as a subject also in
Socialism, he had re-founded recently. He rescued me from my
desperate situation by offering me a position in the stronghold of
Socialist jurisprudence, the Institute for Legal and Administrative
Sciences of the Hungarian Academy of Sciences, where genuine
scholarship was cultivated (in contrast with the mediocre
provincialism of universities) by an excellent staff at a level also
competitive by international standards. Of course, due to my
intellectual disposition, I encountered some hardships there too,

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but the unconditional respect for performance by my director,


Academician IMRE SZABÓ, helped me through them all.

As a member of the Advisory Board of Prime Minister JÓZSEF


ANTALL from 1991 to 1994, you extended your intellectual work to
the field of politics in practice. What inspired you, as a theoretical
professional, active basically in the field of legal philosophy, to such
a step? As far as I know, you have not engaged in politics ever since.
Back at that time, you worked on the legal foundation of one of the
issues affecting society most deeply, that is, on how to face with past
injustices. How far have you got on this issue personally?

Theoretically, I have always been interested in the potential


of law, in its possibilities and limits. This may manifest itself first
of all in the legal handling of exceptional situations, differing from
social normality and therefore unforeseeable by the legislator.
Having examined the efforts at facing with the past on the ruins of
dictatorships abolished after World War II, necessary to found any
future, I have contemplated the tasks ahead of law following
Communism, the other greatest evil of the 20th century. I had to
realise that although many of the answers offered by law are of a
merely symbolical force (laying down an ideal without changing
anything directly), they are able to launch or legalise dramatic
social changes of directions. This may be one of the reasons why
historical justice could become a key issue for us—above all, as
the symbol of a new start concluding the past. The realisation that
no future can be built out of such a criminal past was declared by
the Allies at the end of the World War II. What their “white doves”
brought to Germany and Japan was not parliamentarism,
constitutionalism and rule of law but armed occupation, military
occupying administration, censorship, abolishment of working
institutions, breaking with earlier local authorities, dissolving
prevailing social ties and enclosing the past into penal sentences.
The allied powers tried to create normality by “education to
democracy” planned for decades, in order to make any democratic
arrangement workable at all. And as one of the primary tasks of
jurists is to ensure consistency in justice and in the social order

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alike, I had to ask myself: is there any rational explanation for the
difference between the transitions following the various (brown and
red) dictatorships, or had it been some unspecified vested interest
in the background that has now compelled the Atlantic world to
forbear from acting in the considered way it once did in the past,
after World War II?

So this is how far you got in thinking?

To apply the institutions of the Atlantic world directly onto a


society deformed by nearly half a century of Soviet rule was a naive
idea, to say the least, especially after the attempt at adapting
American law to Latin America had failed less than a decade ago
before. But what else could you expect from a country influenced
by ideologies to the depth that even a few years before SAMUEL
HUNTINGTON’s prediction of the clash of civilisations was
formulated, any reference to the difference between historical
cultures had been denounced with the label of social determinism
as the negation of liberalism?

What legal obstacles prevented the fulfilment of the natural


social demand to close down the past in a reassuring way? Why were
the bills aimed at facing with the past rejected in Hungary?

We have to recall, in connection with the efforts of MP ZSOLT


ZÉTÉNYI, that neither Lord KIRKHILL, recognised then as a leading
legal authority of the Council of Europe, nor HANS-HEINRICH
JESCHECK, the great representative of continental criminal
jurisprudence (and intellectual mastermind of all established
criminal lawyers in Central Europe as well), nor the American
professor CHERIF BASSIOUNI, having pioneered in eventually setting
up international criminal jurisdiction, nor SIMON WIESENTHAL,
internationally respected for having fought for facing past crimes,
perceived any circumstance preventing the actual settling of
accounts in the fact that a dictatorship allows prescription to pass
its period without prosecution. Lapse of time, no doubt, does
actuate prescription. However, with a sound sense of law, it can

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hardly be said that the merely mechanically measured time in a


physical sense is meant by statutory limitations. Law being a
conventionally coded expression of social practicality, the result
will be contrary to the very idea of law in a cynical and self-
destroying way if the authority sees no legal relevance in the
circumstance that the Socialist statehood had not only degenerated
to a perpetrator’s role but also left common crimes (murder, torture,
and so on) unpunished all along; moreover, it had punished exactly
those initiating prosecution by reminding jurisdiction of its legal
obligation.

In 1992, during a conversation you were of the opinion that


society would spontaneously stigmatise—by casting out—the
perpetrators who had operated the dictatorship. This might have
been a slow process but not even it has in fact taken place. In the
meantime, the Constitutional Court declared the prescription passed
and the deeds untouchable in law any longer. Thereby also
accountability has become restricted and made in fact almost
impossible.

Now the old criminal regime may even establish its


innocence. All what our new regime of the rule of law is capable of
is the indirect encouragement of future dictators: if they can keep
their positions at any price until their deeds pass the period of
limitations, then the succeeding constitutional state can no longer
have anything to say about their atrocities. Meanwhile it is known
that the sentences of Nuremberg and Tokyo have, exactly half a
century ago, already shaken this kind of anti-human positivistic
narrow-mindedness.

Your book on Transition to Rule of Law published in Budapest


in 1994 considers a number of issues raised in the process of
transition from quite unusual aspects. One of the remarkable ideas
is, for instance, the obligation of collective deliberation with open
chances, together with all the likely benefits and pitfalls. What does
this mean? Can classical principles of law be questioned? Can

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anyone claim to be entitled to dispute the role played by the law in


the maintenance of order?

The Hungarian response to the Socialist nihilisation of law is


the equally destructive fetishisation of the law. In international
comparison, we have become the pitiable model of a kind of
helplessly self-destructive doctrinarism. With more experience,
maturity and balance, the German Constitutional Court has for
example always regarded the Rule of Law as something which must
not only be waved above our head as some stick. As the mediator of
social order, the culture of what is known as “the Rule of Law” is also
nourished by the people’s elementary sense of justice, therefore
widely held rightful expectations should not be trampled upon.
Law is not an inanimate object but something that operates
through its institutional interpretation, and this is a function of all-
social culture. By the way, this is the reason exactly why different
practices can be built upon the same text in differing cultures. The
reason why it is doubtful whether or not National Socialism or
Bolshevism can be easily transcended is exactly that such regimes
may have completely re-educated society by dictatorially extorting
adjustment in almost every sphere of life, having formed, in
addition to legal texts, background cultures as well. Now, by the
push of such fetishisation, we tend to attribute demiurgic power to
the letter of the law although it is us—starting with our own
interpretation—who carry a creative capacity. Just let me ask: has
the law suddenly changed in the US after 11 September 2003 or
has the shock, mediated and even enhanced by the media, resulted
in a re-interpretation from which an America differing in principles
is being formed by now?

The dilemma with the ensuing debate around the very


meaning of the transition is more passionate than ever and the social
anxiety has not abated at all. New personal and social tragedies are
being revealed day by day. Questions emerge and are still to be
answered, because, as you also think, law cannot be abstracted from
the practice of everyday life.

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Law may though be formalised, impersonalised through its


linguistic formulation, extended even to whatever culture. However,
as OLIVER WENDELL HOLMES once construed, its life is still not logic
alone by far: law is not merely an abstract conceptual act. We,
humans, have devised law as an autonomous mediator, and now we
are trying again and repeatedly to isolate it artificially. But we are
not living for the sake of complying with sheerly abstract formulas.
The reason why we have law is the same why we have culture and,
in it, morality: we wish to filter contingencies of everyday life
arising at the spur of the moment, through standards we have
established according to our values. With culture and morality in
it, law is seriously considered and mostly respected in the same
way and for the same reason how and why our self-discipline is. It
is foolish to turn the instrument at one’s disposal against oneself,
but it is even more foolish to blame the instrument then. The
English say law can only transform into a collective pact of suicide
in a society which is suicidal anyway. Professionals of the abstract
defence of human rights were already horrified at the thought of
calling to account when the Argentinean junta collapsed. Due to
them, the want of any sensible resolution and its irradiating side-
effects have since grown to global proportions, thus the rhetoric of
GEORGE SOROS’ human rights watchers is also getting more refined.
While earlier they used to view any attempt by the successive
government at probing into the affairs of its predecessor with
suspicion of infringement upon human rights from the start, now
they tend to regard the successor to be bound to initiate even
criminal proceedings if human rights violations on behalf of the
predecessor are detected on a massive scale. Our path of transiting
to democracy might have been more beneficial and also more
convincing to the local populace had those civilisators become
enlightened earlier.

Perhaps an “enlightenment” like this may need some time,


don’t you think so?

From the very outset, the external marshalling of all the key
events of our transition was unfortunately a thoroughly theoretised

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and ideologised act of political influencing, guided by own


interests pre-determining the outcome, instead of unbiased
problem solving. This is why it would be vital for society to
recognise its own strength in both thought and action, in order to
neutralise missionary self-interest in professional human rights
activism.

In your recent books, you call attention to the fact that there is
very little literature on the legal handling of post-dictatorship
situations. As far as I know, the legality of the Nuremberg trials has
also been raised recently. What do you think today of this all?

Did the Belgians act in the proper way when they refused to
sentence their king for usurpation of power according to the letter
of their constitution, for having preserved the occupied country’s
legal continuity in exile during the world wars, thus necessarily
omitting certain formalities, and greeted him as the nation’s saviour
and legalised posteriorly his procedure as a gap in law? The
Nuremberg sentences may be questioned indeed. Actually this is a
professional issue for the most part. Indisputably and all that
notwithstanding, its direct message is that back in those days
people had the courage to face questions posed by their times,
forging out some kind of an answer which they deemed optimum
ideal.

Law gets again monopolised by political power everywhere.


For every regime in history has in fact interpreted its rules according
to its understanding, adapting and/or deforming them so as to serve
primarily as its own instrument. What can remain for us from the
respect for law at all?

Like anything else, laws and rights, too, can be used and
misused, that is, overused and abused. There is no “royal path” in
law either. Any formal question can be answered by either ‘yes’ or
‘no’, but this is just the surface, the formal ending of a responsibly
and carefully creative proceeding by searching for balance in the
whirl of rules, principles and considerations running against or

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even extinguishing each other. This is why the classical Jewish and
Arabic as well as the Anglo-Saxon legal mind focuses so little on
sheerly formal logicism in decision-making; for genuine legal
culture arises exactly from the sensitivity and relative openness of
this search for a balance, from the realisation that such a search
may ensure re-consideration and even change within a relative
legal permanence.

If the prevailing law and order is not protected by guarantees


of the rule of law, what can the individual and the society expect?

When they meant ‘rule of law’, the English did not put their
trust into dead letters but into the disciplining force of public
opinion instead. This is why English legal disputes are usually not
only more edifying for the soul, more responsible and more
disciplined, but also burdened by fewer contingencies. They are
focussed on the issues themselves and associate (by adapting) their
legal considerations to these. They know that whatever is socially
assumable, its legal form with proper justification can be designed
too. They do not suggest that law is something that hovers above us
readily available. In a maturely developed culture, the assumption
of responsibility by humans for human concerns is to ensure that
words have a weight and deeds have consequences.

Your reconsideration is not intended exclusively for lawyers:


the purport of the issues surveyed extends well beyond the bounds of
the legal profession. The questions it investigates are still
unanswered, constantly generating strains. The negative effect of the
way past and present are permitted to interact and interpenetrate in
our present day transition permeates our everyday lives. We have still
not come to terms with the past and it will take a long time before
we can reach the desired equilibrium.

Postponing action aggravates the problem. In critical times,


even a tiny error may cause shifts leading to forced paths whose
effect will be felt for generations to come. This is why we still feel
compelled to reconsider, as a thought-inspiring drama, the

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American dilemma of bombing or further fighting Japan in the final


period of the war. Man’s greatest enemy is no one else but his
cowardly self, if incapable of thinking and of determination, lost in
uncertainty. At the best, we can cling with our psychical father-
complex on nothing else but whatever we generate out of ourselves,
our culture and morality. Lawyers carry huge responsibility in
setting standards. Even more so if they under- or over-perform. We
should recall that in the Middle Ages, often condemned as “dark”,
the virtue had to go hand in hand with temperance, moderation and
proportion.

So what can the society do for the future? And what can law do?

We live in a world controlled in a strange way. The debates


we have scarcely started presently lost already their topicality
when the intention of political transition was born. Being over-
zealous in adopting externally patterned models, we used to ponder
solutions which were in fact formulated by others at their places
and times to respond to their troubles—as if no particularity could
survive our brave new world’s universality. In consequence, we
smoothly ignore dilemmas and/or chances which these canons,
imposed upon us as ready-made, leave unanswered. We should
realise at last that insensitivity and lack of independence in
thought and action will not lead us out of our problems. The
resolution, the willingness to take a risk by efforts at beating a new
track in the jungle is needed to find the path we hoped to.

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CREEPING RENOVATION OF LAW


THROUGH CONSTITUTIONAL
JUDICIARY?*
1. Transitions in the Age of Globalisation Having arrived at
the 21st century, we live in the age of legal transfers that tend to be
increasingly uni-directional as aimed practically, by countries
playing a primary role as central agents of globalism, at societies
exposed to the latter’s influence and temporarily proving to be open
in orientation. Just as in case of the United Nations, this uni-
directional legal effect is primarily brought about (i.e., initiated,
effectuated, and also rewarded) by large worldwide international
institutions and organisations along their own goals (of world
banking, of free trade, of human rights and/or others), to which
various regional structures are associated (at their own levels but
with not negligible comprehensive force), as, for us (from Iceland
to Portugal, having also in mind Israel and Turkey, as well as the
successor states of the one-time Soviet Union), basically the
European Union itself as well as the great powers destined for
playing distinctive roles in a classical sense (at least in their
areas), as today the United States of America in world dimensions
or, in their continental environments or broader neighbourhoods or
geo-political zones of influence, Japan,1 Germany or Turkey,2 to
mention just few examples. Those great legal effects starting out
from the Atlantic world—be it a par excellence American or quite
* In its first version, as commissioned by the Nagoya CALE [note 1] for the year 2005,
published as ‘Legal Renovation through Constitutional Judiciary?’ in Hungary’s Legal
Assistance Experiences in the Age of Globalization ed. Mamoru Sadakata (Nagoya: Nagoya
University Graduate School of Law Center for Asian Legal Exchange 2006), pp. 287–312.
1 See the state-financed program of the Nagoya University Centre of Asian Legal Exchange,
aimed at renewing by rebuilding the destroyed traditional laws of the Asian successor states
of the Soviet Union (Azerbaijan, Kazakhstan, the Kyrgyz Republic and Uzbekistan) as well
as of Cambodia, Iran, Laos, Mongolia, Thailand and Vietnam. Cf. The Role of Law in
Development Past, Present and Future, ed. Y[oshihasu] Matsuura (Nagoya: Nagoya
University 2005) viii + 113 pp. [CALE Books 2] and CALE (Nagoya: Nagoya University
Press n.y.) 14 pp.
2 In addition to the numerous higher education institutions of the Turkish Republic of North
Cyprus, see the Turkish universities in Azerbaijan and Kazakhstan with their proper legal
aid effect.

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an international initiative on globalism with a centre in New York


or Washington, or just Swedish governmental supports in legal
assistance—are today being criticised growingly sharply in general
and not quite without reason.3 Because in most cases it is merely
universalistic projections that take place under the aegis of
transferring legal patterns, on the one hand, and solely mechanic
insertion of texts as acquisition in reception of legal patterns, on
the other—and often without proper efficiency and the slightest
effort by either of the two sides, at coping with the delicate yet
lengthy and tiresome job of their internalisation, through rendering
those patterns organic as adjusted to local conditions, that is, with
the task of accommodation day by day. It should be noted, however,
that such a criticism may though be precise and verified by
experience, yet it is far from being complete, as it lacks a
comprehension of the whole process as well as proper distance in
time and perspective, too. In itself, it can scarcely express the
impact en masse, namely, that such a transfer, having become a
daily occurrence, solely by virtue of its mere quantitative
proportions, may still prove to be effective. For all the failures in
individual details notwithstanding, it may perhaps be effective
indeed in the specific way in which—as contrasted to German and
English fighting styles in WWII (built on the professional
excellence and mental preparedness of the fighters) or to the Soviet
one (based singly on the massive number of those exposed to the
destruction)—the American type of warfare may have been: relying
in every respect on the mass-scale deployment of military
techniques put into action, while protecting to the utmost its human
staff (rarely characterisable by individual excellence). For it was
characteristic of exactly that type that the Americans first
demolished everything they could with air force and armoured
troops and, then, invaded the area at a time when not so much the
3 Cf., e.g., by the author, ‘Reception of Legal Patterns in a Globalising Age’ in Law and
Justice in a Global Society Addenda: Special Workshops and Working Groups (IVR 22nd
World Congress, Granada, Spain, 24–29 May 2005), ed. J. J. Jiménez, J. Gil & A. Peña
(Granada: International Association for Philosophy of Law and Social Philosophy –
University of Granada 2005), pp. 96–97 & ‘Transfers of Law: A Conceptual Analysis’ in
Hungary’s Legal Assistance Experiences in the Age of Globalization ed. Mamoru Sadakata
(Nagoya: Nagoya University Graduate School of Law Center for Asian Legal Exchange
2006), pp. 21–41.

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defeat of the resistance was at stake any longer as rather the


organisation of its territorial control only. That is, in principle it is
conceivable that the process (or, obviously, the lack) of these legal
effects getting internalised could only be drawn up as a failure in
the mirror of individual case analyses. However, on the whole and
taken as an aggregate regarding their mass effect, those legal
transfers may perhaps still have brought about a kind of
irreversible change and may thus have proven profitable from the
financier’s aspect in a pure cost & benefit analysis.
It seems as if it were just the reproduction of the above global
trend that took place with merciless consistency under the aegis of
so-called constitutional (re)building in the classical Central
European and Balkan region of the once Socialist empire in
general, as well as on the core territories of the classical Russian
empire in particular, primarily through an economic and financial
policy urged by American economic exploitation4—with a
difference that struck us as strange (and which was somewhat
frightening already then, alluding revelatively to our present-day
knowledge in an embryonic form). Notably, the very same network
of experts and institutions, the same staff of specialists could also
be seen in our neighbourhood, which network and staff had started
“social-scientific” law-modernisation in Latin America decades
ago, only to fail miserably afterwards, due to their ethno-centric
blindness and liberal universalism, having thought to fulfil the
mission of their “Law & Development” movement just through the
simple transfer and/or extension of their mere American domestic
daily legal routine. Hungary was no exception to this either. Of
course, it may take years or decades until we can establish the
reason with scholarly certainty, why it was exactly us—despite
having beaten paths of pluralism which once required courage in
Socialism, and despite having belonged to the vanguard by
developing a state-of-the-art economic and financial system and an
adequate legal structure, with an advanced scholarship that also

4 Cf., e.g., by the author, Transition to Rule of Law On the Democratic Transformation in
Hungary (Budapest: ELTE “Comparative Legal Cultures” Project 1995) 190 pp.
[Philosophiae Iuris] as well as—in the mirror of experiences recapitulated abroad—Kiáltás
gyakorlatiasságért a jogállami átmenetben [A cry for practicality in transition to the rule of
law] ed. Csaba Varga (Budapest: [AKAPrint] 1998) 122 pp. [A Windsor Klub könyvei II].

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adopted Western results of the time, and despite having been


perhaps the first among the first with our network of economic-
political relations rather open even in worldwide comparison—who
happened to fall back, within few years’ time, into the fatigue of the
lack of perspective and hopelessness, facing the threat of the
practical loss of the nation, resulting from the country’s selling off
and the consequently pursued policy of surrender, that is, to fall
back into the self-generating spiral of indebtedness, dependence
and helplessness, into the drab, cheerless and monotonous toil of
day-to-day drudgery for sheer individual and community survival.
Our path is scarcely exemplary and—as we know for years now—
it is far from being attractive to the surrounding world.
The reasons are presumably mostly political, sociological
and to be found (in addition to international contexts) certainly in
our particular socio-psychological state above all. But all these do
have their legal aspects as well, either inherently or as a
consequence. As the first of these—namely, idealism—, I
suspect that our practical formation of the law was achieved along
idealised conceptions and principles as call-words, with an
academic doctrinarian purism and unrestrained resolution, which
the actors involved thought to be a simple reception of Western
patterns and constructions. Meanwhile they had so to speak no
thorough knowledge of the everyday life and the practical action of
the law of Atlantic societies and the deep structure and real
components thereof: neither of the actual sources of the latter’s
occasional successes, nor of what self-examination, attempts at re-
start and uncertainty the latter may have felt in result of the by far
not infrequent domestic failures. Therefore, our present is mostly
the product of idealists, reminiscent of belated revolutionary
utopians having lost ground, who operated with ideals thought to be
real and actuated them as a panacea, while the people relied on
hopes for a more liveable and viable future, promising also moral
entirety, as contrasted to the revealed immorality of the past.5

5 It is so to say comical to see how the programme of the president of the Hungarian State
Radio lionises the first president of the Constitutional Court. For at the end of the report it
turns eventually out that there is in fact not one single point on which they could agree.
Namely, the reporter as a non-professional in law understands by rule of law the practical
implementation and factual reality of the encounter of “state” and “law” surrounded by a

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Secondly—as fragmentation of responsibility—, I see


another factor of a similar significance in the circumstance that,
with the downfall of dictatorship when the first free parliamentary
elections were made, the institutional representation of the
responsibility to be taken for the country as a whole practically
ceased to work. For just like in feudal particularism, the country
actually fell apart, exactly in a dramatic period determining its
future. All this is to mean that what was going on—along principles
like the separation of powers and other ideals and practices—was
nothing in fact but the totalisation of partial interests and
competences (etc.) through expanding one’s political authority to the
detriment of others, in diverse fora (mostly of the state) in constant
competition with one another in over-representation and fight for
self-assertion. As if everyone had been against everyone, no one
acted aware of one’s irreducible responsibility for the whole: for the
country’s future, for the actual cause or—in co-operation with
others—for the sake of a common purpose at least. Constitutional
court, ombudsmen, as well as agents of the public order from police
via the public prosecutor to courts (often extinguishing the effect of
each others’ efforts), human rights activists and others were all
busy just to realise themselves and their particular agenda, instead
of co-operating as parts of a shared whole. All may have acted in
the name of and through the Republic of Hungary but hardly for it,
for a new Hungary, successfully coping with her difficult tasks of
transition. Some behaved as if they had existed in another world,
failing to recognise that the actual impact of their actions would
also be worth of their attention, and apparently forgetting that also
in possession of previous knowledge of what actual operation could
be expected from the country’s overall institutional system, they
should have nevertheless acted in practice to the benefit for the
country. The Constitutional Court as the otherwise unapproachable
judge of the legislature, for instance, instead of developing some
humility presumable in common causes, only expected the

certain level of perceptible safety, while the latter, finding this earthly expectation lay and
petty, means by it a mere structural principle of the organisation of the state that cannot be
held accountable for anything else, say, public good, that is, anything what is good for
average man too. Katalin Kondor Névjegy 2 Válogatás Kondor Katalin mûsorából [Name
card: selection from the programme of Katalin Kondor] (Budapest: Masszi Kiadó 2005).

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Parliament and the government (in most cases preparing the bills)
to set up additional offices, designed exclusively to try to still
detect the allegedly deep and mostly hidden motives that there
might perhaps be behind the otherwise inscrutable action of
constitutional judiciary.
Thus, taking international trends into account, it is no mere
chance that the issue of global legal effects has produced a
particular literature of its own. And the first decade (crucial to
defining the character, prospects and limitations of the transition)
of the Constitutional Court of the Republic of Hungary has become
one of the key instances for it, as a unique example in the history
of legal transfers of thousands of years. For it was in fact a legal
importation without authorisation (therefore, in a legal sense,
definitely arbitrary), executed by a constitutional court so to speak
tacitly and stealthily (that is, activating resources solely
identifiable from a subsequent external analysis of its products),
through the conscious use of its enormously extended sphere of
competence, that is, within the scope of a power with no
institutionalised appeal against and thus practised without control,
excluding any responsibility whatsoever in either a legal or a
political sense.

2. Constitutional Assessment: the Hungarian Way It


indicates good senses for choosing a self-marketing subject
therefore, if a career-starter young researcher attempts writing a
monograph6 on the peculiarity of this very species of legal transfer,
in order to raise scholarly interest in the challenging topic. And for
us, Hungarians, this might be very edifying indeed, as it is in any
case to be noticed if one is closely approached from the outside
through thorough analysis. And even if the case is of an
inexperienced first experiment at interpretation, it is obviously the
own French (Western European, so, more broadly: Atlantic)

6 Catherine Dupré Importing the Law in Post-Communist Transitions The Hungarian


Constitutional Court and the Right to Human Dignity (Oxford & Portland Oregon: Hart
Publishing 2003) xx + 217 pp. [Human Rights Law in Perspective].

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worldview of the author that provides a filter, and therefore the


mirror she offers will doubtlessly extend a remarkable value-
judgement upon us.
According to her basic point of view, the Central and Eastern
European transitions were characterised by an “unprecedented
level of exportation and importation of law” in general and the “law
importation was a deliberate strategy carried out by the Hungarian
Court” in particular (p. i). The circumstance that “although the
Constitutional Court used the language of globalisation or ius
commune the law it imported was more specific” (Colin Harvey
‘Series Editor’s Preface’, p. vii) even enhances the peculiarity of
this all, as “the background of the importers determined the choice
of German case law” (p. i). Well, it is this realisation that will from
now on serve as a starting point for the whole elaboration, as it
provides us genuinely with “a unique field of experimentation and
of reflection” (p. 62) in the examination of the complex multitude
of present-day legal transfers and effects. Within this, it is taken as
a widely known fact that academics are mostly “eager to test their
hypotheses and to extend their empirical field of studies” (p. 3),
even if they are in want of specific experience and background
knowledge on the field of such an expanded new experiment.
Accordingly, at the most they are guided by some presuppositions
they are to inflict (extrapolate) on new fields—instead of the
humility of getting to cognise the given hic et nunc7—, so it is no
mere chance that “[c]ountless experts […] flooded Eastern
Europe” at the time (p. 50).8 As to the contemporary widespread
opinion, Hungary was the best and earliest prepared for transition,
7 As an especially telling example, see, among others—and as the extrapolation of Latin-
America-experts—, Juan J[osé] Linz & Alfred Stepan Problems of Democratic Transition and
Consolidation Southern Europe, South America and Post-Communist Europe (Baltimore:
Johns Hopkins University Press 1996) xx + 479 pp.
8 As a Hungarian spectator ironically observes, “Allegedly, planeloads of frustrated Western
law professors brought to Eastern Europe their pet private draft codes that had been
ridiculed back home. These were sold to the new democratic regimes as inevitable.” András
Sajó ‘Universal Rights, Missionaries, Converts and »Local Savages«’ East European
Constitutional Review 6 (1997), p. 45. And as an early perception, R. Dorandeu — ‘Les
Pélerins constitutionnels’ in Les politiques du mimétisme institutionnel La greffe et le rejet,
ed. Yves Mény (Paris: L’Harmattan 1993), p. 83—remembers that salesmen toured Central
Europe with catalogues of “flat pack constitutions” offered for the price of US$250.000
(Dupré, p. 51).

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thus she could be the first to embark on an own path. For this
reason, it is all the more puzzling how all this could be reverted into
a negative or even counter-example and whether any international
intention could play any role in this. Because even the author holds
it as commonly known that we in the whole Central and Eastern
Europe were in the focus of the world community, as “[n]ever
before in history had the drafting of constitutions and the adoption
of national legal systems attracted so much attention from outside
the countries concerned.” (p. 10)
What distinguishes Western (American-type) interventionism
or decisive interference from the Eastern (Soviet-type) imperialism
is definitely the way it takes place: instead of direct or indirect
military or police-controlled occupation, the former creates an
economic and/or financial situation to be exploited by it. That is, it
applies control by the capital which is—if at all—very rarely
noticeable in the language of the applied rhetoric even in the most
obvious cases of a dictate.9 True, reassuringly nice words were also
told back in that time, addressed to the whole region, for example
by LAWRENCE S. EAGLEBURGER as US Deputy Secretary of State as
early as in 1991 at the annual conference of the US Export-Import
Bank, messaging that “One thing we in the West should not do is
sit in judgement on our East European friends, or attempt to dictate
choices which are theirs to make.” Of course, he also added at
once, for the sake of clarity (as always, both before and after Iraq
and Iran) that

“However, there are certain things which the


West, particularly we in the United States, can do to
help ensure that the difficult economic transition on
the way does not destabilise either the fragile new
democratic institutions or peace in the region as a
whole”.10

9 As an edifying case-study concerning the ex-Soviet Union, see, by the author, ‘Failed
Crusade: American Self-confidence, Russian Catastrophe?’ in the present volume.
10 Quoted by A. G. V. Hyde-Price ‘Democratization in Eastern Europe, the External
Dimension’ in Democratization in Eastern Europe Domestic and International Perspectives
(London: Routledge 1994), p. 245 (Dupré, p. 51).

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The author also considers it as a fact that “As a result of the


external involvement in the reconstruction […], these countries
were flooded with advice and guidance” (p. 10), and in this the
European Union, the Council of Europe, the International
Monetary Fund as well as the World Bank played equally cardinal
roles (p. 11) even the more so as “the universalistic liberal ideal
was used as a yardstick to judge the preparedness of the new
democracies to join first the Council of Europe, and then the
European Union.”11
In connection with such an unprecedentedly powerful
mechanism of influencing and direct or indirect international
interference, the Hungarian Constitutional Court became worthy of
the international professional community’s attention, itself having
proven to be a tacit legal importer. For it acted within its own
competence, that is, under the pretext of constitutional
adjudication and thus, albeit not authorised to creeping legislation
or constitution-writing, yet exploiting the consequences of the fact
to the utmost that their founding constitutional statute placed no
forum of control or appeal above it and, consequently, each and
every act taken by it would become built into the Hungarian
constitutional order inevitably with legal (or, more precisely,
constitutional) force; otherwise speaking, in want of any legal
possibility to be held responsible politically or legally, the activity
of its justices is only limited by nothing but their own moderation
and self-control. And as the decisions of the Constitutional Court
become themselves—until a new Constitution is framed, or until
they are overruled or perhaps re-interpreted, not to mention their
tacit desuetudo (this being presumable at present only as a
theoretical chance)—parts of the constitutional foundations of the
legal order, they had the possibility, as a law-repealing authority
over the parliamentary legislature (what HANS KELSEN, having
constructed the very idea of constitutional adjudication in Europe,
described as negativer Gesetzgeber), both to define the pattern and
the limits of the transition and to draw the constitutional standards
and confines of the legal order in formation after Socialism had
been over.
11 Wojciech Sadurski Rights before Courts A Study of Constitutional Courts in
Postcommunist States of Central and Eastern Europe (Dordrecht: Springer 2005), p. 232.

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Although back in that time the Constitutional Court


consequently denied this,12 it also caught the public eye already at
the beginnings that the Constitutional Court was in fact “the most
powerful and perhaps even the most active specimen of its kind in
the world”,13 as “perhaps the most powerful in the region in that it
encompasses all the known powers of Western constitutional
courts.” (pp. 6 & 34) In addition, this was noticeable not only as
regards its competence and political over-activism, but also in the
nearly total lack of regulation of its procedure (in what it starts
proceeding, when, by whom and which way), within which—
including also its own staff, literally—“anyone can file a petition
about virtually any constitutional issue, with subsequent
proceedings being very informal.” (p. 6) All in all, this court
proved to become “a very prolific importer of foreign law […] in a
systematic way.” (p. 46)
Well, the circumstance that “the Hungarian Court imported
German law” (p. 9) and “routinely relied on imported law as an
adjudication strategy” (p. 11), played not just an incidental
auxiliary role but did determine its entire strategy exactly in that it
“provided the new values and constitutional benchmarks” (p. 12)
in a way that, in the last analysis, “importing the law from German
constitutional case law enabled the Hungarian Court to introduce a
new concept of fundamental rights” (p. 54).
If we consider that in the devotion to a genuine transition in
Hungary “the »rule of law« had a particularly strong appeal”,
because “it was the law that people had demonstrated for and

12 After the Constitutional Court president tried to intervene with the succession of justices
unduly—but temporarily successfully, playing off the parties of contrasting interests against
each other in his tactical game of the personal selection for a short time (e.g., joining with
one party of the opposed pole in the Parliament against the author of the present paper as all
the so called conservatives’ candidate)—, he reproached me later on, as a result of an
allegedly plenary meeting of the Court dedicated to exactly this very issue (!) and in which
I was quasi-officially declared unacceptable for them as a candidate (!), having written about
their overpower and criticised some of their decisions, even by giving voice to this in
international publications. For an echo of this scandalous event in the press, see
‘Alkotmánybírák: kivonulók kérték’ [Constitutional justices: leavers] as well as László
Sólyom [interviewed] ‘Teljesen átpolitizált lett a választás’ [The elections became totally
politicised] Magyar Narancs VIII (November 21, 1996) in <http://www.mancs.hu/
index.php?gcPage=/public/hirek/hir.php&id=653>.
13 Georg Brunner ‘Development of a Constitutional Judiciary in Eastern Europe’ Review of
Central and East European Law 6 (1992), p. 539 (Dupré, p. 37).

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fought for” (p. 21), this explains the contrast and paradoxical
contradiction that the call-word ‘ r u l e o f l a w ’ became
incontestable (and not only legally but also socially and politically
as well), while it was exactly under the pretence of the rule of law
that, according to a growing number of analyses, the sense and the
merit of the entire transition process got lost (i.e., the country’s
rebuilding and its chance to take a new start, integrating the nation
in a manner ethically acceptable for generations). For at every
crossroads the hypnotising siren’s voice of a ‘revolution led by the
rule of law’ could be heard, and indeed, “the role of law was
primordial in that each step in this process, no matter how
unexpected, was controlled and accompanied by a legal response.”
(p. 29)
The provision of the new, effective Constitution announcing
the transition is rather laconic as its Article 2 reads: “1–The
Republic of Hungary shall be an independent, democratic state
under the rule of law.”14 However, it was this on which the
Constitutional Court relied—or, otherwise formulated, “[i]t is from
this one word, alternatively interpreted as promising a »rule of law«
or »constitutional« state, that the court construed”15—in the
dramatically decisive first epoch of its existence, in its decisions
cutting the system change back to be a legitimate extension of the
past’s legal continuity. As the first president himself put it later on,
“Of all constitutional principles, the rule of law played a special,
symbolic role: it represented the essence of the system change”,16
and in practice this could mean nothing else than that “The

14 The version adopted in 1989—“The Republic of Hungary is an independent, democratic


state under the rule of law […]”—was modified by Act XL (25 June 1990). For details, see
Balázs Schanda ‘Rechtsstaatlichkeit in Ungarn’ in Rechtsstaatlichkeit in Europa hrsg. R.
Hofmann, M. Marko, F. Merli & E. Wiederlin (Heidelberg: Müller 1995), pp. 219 et seq. and
Géza Kilényi ‘Ungarn schreitet in Richtung Rechtsstaatlichkeit’ Europäische
GrundrechtsZeitschrift (1989), pp. 513 et seq.
Such formulation is not peculiar to Hungary and raised dilemmas elsewhere as well in
the region. E.g., Article 1 of the Czech Constitution holds that “1–The Czech Republic is a
democratic state ruled by law.” Cf. Libor Hanuš ‘Are General Principles of Law a Source of
Law in the Legal System of the Czech Republic?’ Právník CXLVI (2007) 1, pp. 1–12.
15 Ruti Teitel ‘Paradoxes in the Revolution of the Rule of Law’ Yale Journal of International
Law 19 (1994), p. 244.
16 Constitutional Judiciary in a New Democracy The Hungarian Constitutional Court, ed.
László Sólyom & Georg Brunner (Ann Arbor: University of Michigan Press 2000), p. 38.

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Hungarian Constitutional Court adopted a formalistic and neutral


approach to the rule of law that focused on legal certainty” (p. 31).
But from the well-schemed stand that

“the rule of law—as the key concept for the


transition and also in a technical sense—gained a
meaning identical with legal safety that is regarded
by the Constitutional Court […] as the »conceptual
element« of the rule of law”,17 the practice followed
that “the rule of law […] is construable as exclusively
a formal rule of law”.18

Accordingly, in the jurisprudence of the Hungarian


Constitutional Court “the general clause of the rule of law [has
become] [a]n own standard of constitutionality, on the one hand,
and the source of rights and constitutional principles, on the
other”, which the Court did not hesitate to “break down into
requirements in merit” at once,19 proceeding from case to case,
judging various issues at hand by pronouncing upon their merits
with a constitutional force. That is, the Constitutional Court picked
out one single partial element at random and endowed this with a
general, somewhat of a nearly good-for-all role, from a complex and
collective concept20 that is undefined, therefore unsuited for formal
inference, being construable only as the living ethos of a given
active culture, interpretable exclusively as the direction of
continuous striving for reconciliation amongst in-themselves
opposing or even contradictory tendencies. The result is

17 László Sólyom Az alkotmánybíráskodás kezdetei Magyarországon [The beginnings of


constitutional judiciary in Hungary] (Budapest: Osiris 2001), p. 686 [Osiris tankönyvek].
18 Decision no. 31/1990 (15 December) of the Constitutional Court in Alkotmánybírósági
Határozatok (1990), 136 at 141.
19 Sólyom Az alkotmánybíráskodás kezdetei…[note 17], p. 464.
20 As just one example, cf., Richard H. Fallon, Jr. ‘»The Rule of Law« as a Concept in
Constitutional Discourse’ Columbia Law Review 97 (January 1997) 1, pp. 1–56. The very
fact that “The meaning of the rule of law is contingent in nature” with “multiple rule-of-law
values competing” within its reach, in which eventually “no one rule-of-law value is
essential” in and by itself, is emphasised rightly and just in this specific Hungarian context
by Ruti Teitel ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ The
Yale Law Journal 106 (1997), p. 2025.

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disputable, above all just because the unsuitable method (that is,
suited exclusively to conceal the arbitrariness—or falsity—of the
derivation) itself is disputable. Also our scholarship agrees upon
that a normative construction based on the exclusivity of “not
entirely normatively definable” concepts and principles can prove
nothing else than the “political hypertrophy” of constitutional
judiciary21—exactly the end-result against which (notably, against
the activism in the immoderate expansion of the playing field of
free discretion and the assumed political role inevitably involved
by this) HANS KELSEN (the one who once sowed the seeds of the
very notion of constitutional adjudication and then took part also in
implementing it in its early practice) tried to warn constitutional
judiciary.22
Drawing from the Constitution’s laconic formulation—
Article 32 reads that “1–The Constitutional Court shall review the
constitutionality of laws […]” and “2–The Constitutional Court
shall annul the statutes or other legal norms that it finds to be
unconstitutional”—, the Hungarian Constitutional Court rose to be
the highest level political body on the pretext of interventionist
a c t i v i s m . For example, already in the period before the
amendment of the Constitution on 20 June 1990, it would have had
an excellent opportunity for modestly waiting staying in the
background, but instead, as the author claims, it used the transitory
state of constitutional regulation as a strategic stepping-board.
Notably, back at the time,

“The Constitutional Court could have shied


away from its role and waited for the adoption of a
new constitution but instead, it seemed that the
interim Constitution encouraged the Court to use its
powers to the maximum of its creativity and capacity
under SÓLYOM’s presidency.” (p. 34)

21 Jiří Přibáň ‘Moral and Political Legislation in Constitutional Justice: A Case Study of the
Czech Constitutional Court’ The Journal of East European Law [Columbia University East
European Law Center] 8 (2001) 1, pp. 28 & 16.
22 Hans Kelsen Wer soll der Hüter der Verfassung sein? (Berlin-Grunewald: Rotschild 1931)
56 pp. Also cf. Gábor Halmai ‘Kelsen és az osztrák Szövetségi Alkotmánybíróság’ [Kelsen
and the Austrian Federal Constitutional Court] Világosság XLVI (2005) 11, pp. 3–14.

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For this very reason, it is no mere chance that an analysis


from the first years of the Court’s operation (in 1992) already
states:

“Therefore, it is not surprising that the


Constitutional Court has in no time become one of the
key actors on the stage of Hungarian constitutional
life whose performances are thoroughly watched and
hotly debated, and both criticised and praised by the
general public.”23

I remember my Viennese colleague when he was amazed


(and somewhat perplexed) to report me about their prior invitation
extended to the Hungarian president in Vienna, an occasion which
had solely been attributable to the mystery that had kept them all
confounded. Namely, they wondered what this newly founded
institution trusted in. Did this Court indeed suppose that the entire
institutional system, the lawyerly elite and the people in great
expectation of the Republic of Hungary would tolerate for good
their continuous reprimand and persistent constitution-writing,
further on and unchangedly? Yet, as my friend went on smiling, the
invitee had gone on heralding their victory with perfect tranquillity.
True, it is more than a decade now that literature has
described the phenomenon of “transjudicial communication” as
the globalisation of the process in which “courts are talking to one
another all over the world”,24 but this does by far not alter the
formal obligation that “constitutional courts are meant to refer only
to provisions of positive constitutional law”—in the same way as it
does not provide exemption from the requirement of the division of
powers whereas, in our case, “constitutional courts are strictly
prohibited from acting as legislators.” (p. 45) Given its lack of
authorisation, how can we qualify such a proceeding of the
Hungarian Constitutional Court, compelling the whole state
apparatus? And while judging on issues of constitutionality, by

23 Brunner ‘Development of Constitutional Judiciary…’ [note 13], p. 540 (Dupré, p. 37).


24 Anne-Marie Slaughter ‘A Typology of Transjudicial Communication’ University of
Richmond Law Review 1994, pp. 99–137 (Dupré, p. 43).

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what right does this Constitutional Court demand consistency and


proportionality with openness and transparency from all norm
issuers and from all norms issued, while it may lack such
properties? Because the non consequitur in the field of law—in fact
the synonym of political activism here—denotes in this case too
that the constitutionality criteria postulated in the transition’s
dramatic period by the Constitutional Court of the Republic of
Hungary (which it unyieldingly enforced as the measure for its
constitutional adjudication) does not derive from the Constitution
of the Republic of Hungary with any logically compelling force. For
the kind of constitutionality it has enforced is presumable at the
most as one of the Constitution’s numerous and equally feasible
interpretational alternatives. Although, as it shall be seen, the
Court broke away even from the consolidatedly reliable Western
models of constitutionality as well, moreover sometimes
diametrically opposing to them, denying their major values. This is
to say that the operation of the Constitutional Court (with its
outputs from official inputs in a black box) proved to be more
inextricable and unforeseeable than, for instance, the activity of
ancient Delphic oracles or antique Rome soothsayers (who
observed the flight of birds or the intestines of animals). This
operation might have followed from a deep insight of constitutional
justices themselves but by no means from the exclusive
constitutional basis of such an operation, notably, the textual frame
of the Constitution as a supreme source of the law. The
Constitutional Court was set up by its founders in alleged
transcendence of Socialism, blocking its survival. In this socialism,
we could already experience the exaltation of certain materialistic
values (as, e.g., “the cause of Socialism”) as the first rule, while
usually the principle of la loi du plus fort as the second rule
prevailed. So the question is: who has authorised the Constitutional
Court to such an over-accomplishment? Because if it authorised
itself to anything more than allowed by its original (and till now the
only one) statutory assignment of a constitutional force, then that
what is at stake here is scarcely anything more or else than what is
called usurpatio in jurisprudence. And this raises the dilemma, at
least in principle, whether decisions made this way are valid,

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irrespective of whether or not the legal order of the Republic of


Hungary knows any invalidating mechanism or sanctioning form
for establishing invalidity which has to result from the overuse of
power. For, it is an axiom known in every material doctrine starting
from ancient Roman wisdom (only confirmed by the KELSENian
doctrinal reconstruction of our times’ modern formal law) that
nobody can transfer more rights and entitlements than he himself
has.25 In other words, misuse is no source of law but, on the
contrary, it is a quality depriving of rights and annulling alleged
entitlements.
What is more, not only the call-word of the “rule of law” but
also the (detested but existent) West-idolatry, arising from a
lack of actual knowledge about the West captured the minds in
Hungary. This was also true for circles of the intellectual elite as
well as the peaks of authority occupied by it (even—or even more
so—if their ideas were rooted in post-modern cosmopolitan a-
historic universalism). On the final account, this ignorantia proved
a bad counsellor: a false and, above all, self-deceiving one. As
characterised by the author, “a glorified and idealised vision of the
West and of liberal law” replaced the missed opportunities of
“direct knowledge or experience” and, in result, “a cultural image
of the West developed which did not correspond much to the
reality.” (p. 5726) Thus, not only the local past, tradition and
arrangement (and therewith also the nation’s endeavour and
potentialities) were mostly ignored, but also the mechanical
transfer of partial solutions, torn (by way of some mere technicality)
out of the social-political complex of an entire working law and
order, suggested an in itself false and distorted image about the
benefits promised by it. In addition, the total lack of adaptation,
that is, a ceaseless drive to meet some external (foreign) standards
also pushed decision makers to extreme responses, eliminating the

25 “Nemo plus iuris ad alium transferre potest, quam ipse haberet.” Ulpianus in D.50.17.54,
and cf. also 170.
26 As, for instance, Ferenc Fehér described in his emigration the irrational (and absurd)
utopianism of the “West is best” more than a decade ago—‘Imagining the West’ Thesis
Eleven (1995), p. 52—, at about the same time when also the editorial ‘Ex occidente lux?’
in Transit (1995) formulated similar doubts. See also the pondering on the naturalness and
probable pitfalls of “institutional optimism” by Péter Kende in his ‘L’optimisme
institutionnel des élites postcommunistes’ in Les politiques du mimétisme…[note 8], p. 237.

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chances for any “in-between solution” conceivable (p. 58). In


today’s state of Hungarian public speech, the author’s self-assured
judgement appears appalling, notably that back at its very
beginning (ascertainably back to nearly two decades ago, that is, so
to speak, as a defect from birth), “a procedural and minimalist
conception of democracy” was adopted and enforced by the
political elite27—perhaps because the genuine social foundation
was missing and there was nothing onto which anything else (even
a bit reminiscent of the daily operation of usual Western
arrangements) could have been built. Paradoxically speaking, in
want of any civil society established and functioning, there is a
structure operating dysfunctionally, which should have in fact
evolved exactly from this civil society but is instead imposed upon
it from above as ideally ready-made in a sort of vacuum.28

3. An Example: Human Dignity in Isolation and Sterility So


what is in fact at the heart of such developments? “The period
1990 to 1998, which corresponds to the first term of the Hungarian
Constitutional Court, was characterised by an abundant use of
foreign law in judicial reasoning.” Within this, the construction of
“human dignity interpreted as being the source of other
fundamental rights” was framed with the intermediary role of a
general personality right, “which the Court imported from
German law.” (p. 6329)
27 Karen Dawisha ‘Introduction’ to The Consolidation of Democracy in East-Central Europe
ed. Karen Dawisha & Bruce Parrot (Cambridge & New York: Cambridge University Press
1997), p. 40 (Dupré, p. 58, note 51).
28 See, as the first disclosure, Bill Lomax ‘The Strange Death of Civil Society in Post-
communist Hungary’ Journal of Communist Studies and Transition Politics (1997), pp. 41 et
seq., while others, too—e.g., Linz & Stepan [note 7], p. 314—, establish that “political
society after 1989 effectively demobilised civil society.” In other words, the transition
chased the best forces of society into party-like organisations, which, however, paralysed the
chances of the emergence of any civil society for about one and a half decade, owing to the
society’s tragic splitting into two constituencies, dividing both political and socio-
intellectual life in Hungary. I think that the transcendence, promising the hope of putting an
end to the division, has presumably started at last, as an unexpected—and certainly not
intended—by-product of the movement of so called civic circles [‘polgári körök’], firstly and
primarily in rural Hungary (in villages and small towns).
29 Also see, by Catherine Dupré, ‘Le droit à la dignité humaine, emblême de la transition
constitutionnelle?’ in System Transformation and Constitutional Developments in Central
and Eastern Europe / Changement de régime politique et le développement de la constitution

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Doing so, however, our Constitutional Court (exactly because


its actions were not openly done in want of any explicit or tacit
authorisation) adopted—in contrast to the ethos it expected from
everyone else on its behalf—an encoded speech, a pretence and
insincerity aimed at reassuring. In order to reach a kind of approval
on that its “decisions are based not on partisan political
considerations but on neutral, objective law, even when the issue in
dispute obviously has very contentious political origins and
consequences”,30 the “imported law [was] used […] as a modern
substitute for natural law […] couched in a discourse of
globalisation or ius commune” (p. 157, similarly on p. 12). So no
matter how modern, defendable and maybe even justifiable it was
(as the Court must have thought it to be), in its present-day
application our Constitutional Court did not assume even the
openness of the relatively confined realm of positive
(constitutional) law rules having been brought into a broader circle
of principles—to the same extent that had once proven to be
instrumental in the legal founding of how to face with the past after
the World War Two, to surpass all the difficulties of making progress
across obstacles31 and eventually also to successfully cover the
affair with the additional ethical splendour in result of the
greatness of the goal and the obvious necessity of reaching it.
Whenever it had a way to conceal, it did not assume sincerity or
openness. For the Court had enough power and it did not want to
really convince anyone. Instead,

en Europe centrale et orientale ed. K. Tóth (Kecskemét & Szeged: Károli Gáspár Reformed
University Press 1995), pp. 51 et seq. as well as ‘Importing German Law: The Interpretation
of the Right to Human Dignity by the Hungarian Constitutional Court’ Osteuropa-Recht 46
(2000), pp. 144 et seq. & ‘Importing German Case Law: The Right to Human Dignity in
Hungarian Constitutional Case Law’ in The Constitution Found? The First Nine Years of
Hungarian Constitutional Review on Fundamental Rights (Budapest: INDOK 2000), pp. 215
et seq.
30 Herman Schwarz The Struggle for Constitutional Justice in Post Communist Europe
(Chicago: University of Chicago Press 2000), p. 5 (Dupré, p. 158).
31 Heinrich Rommen ‘Natural Law in the Decisions of the Federal Supreme Court and of the
Constitutional Courts in Germany’ Natural Law Forum IV (1959), pp. 5 et seq.; Wolfgang
Friedmann ‘Übergesetzliche Rechtsgrundsätze und die Lösung von Rechtsproblemen’ Archiv
für Rechts- und Sozialphilosophie 41 (1955), pp. 348–371; Peter Schneider ‘Naturrechtliche
Strömungen in deutscher Rechtssprechung’ Archiv für Rechts- und Sozialphilosophie 42
(1956), pp. 98–109.

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“in order to maintain the semblance of an


exclusively legal—that is, politically neutral—way of
reasoning, while of course it practised a political and
ideological activity in order to promote a new system
of values […], it used German law as a timeless and
incontestable natural law […] only to present its own
legal novations and ideological choices as an
enterprise of rattrapage with Western countries and
the harmonisation of Hungarian law with norms and
standards supposed as shared on the basis of
consensus by the international community (although
in reality there was no global legal practice about
human dignity).”32

Aware of its legally unquestionable power and its


inaccessibility, convinced that it was formally enough to
communicate with the society only one-sidedly and from above
without feedback, the Constitutional Court contented itself with
mere declaratory rhetoric, in fact with the falsity implied by
referring to nothing but “modern constitutions” and similar
unspecified generalities (p. 160).
It is this very complex where what the author characterises
with three qualities—namely, exteriority, anteriority and
universality—as accomplished (p. 163). These qualities stand for
the fact that the restructuring of the Hungarian legal system was
performed by an unauthorised and (in want of any legal mechanism
superordinate to it) unsupervised agent, through adopting patterns
in the guise of universality from outside, as elaborated earlier by
others and for others. Of course, we know that there is no global
pattern in abstracto: what we operate with is always concrete. Well,

32 “de maintenir l’apparence d’un mode de raisonnement uniquement juridique—donc


politiquement neutre—, alors même qu’ils se sont livrés à une activité politique et idéologique
de promotion d’un nouveau système de valeur. […] à faire passer le droit allemand pour un
droit naturel, intemporel et incontestable […] de présenter ses propres innovations juridiques
et ses propres choix idéologiques comme une entreprise de rattrapage des pays occidentaux et
de mise en conformité du droit hongrois avec des normes et des standards supposés consensuels
au sein de la communauté internationale (bien qu’il n’existe en réalité aucune jurisprudence
globale sur la dignité humaine).” Thierry Delpeuch [compte rendu] in Droit et Société
(2005), No. 60, p. 593.

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although “this was never made explicit by the Court”, this took
place in the form of reception from the Federal Republic of
Germany (p. 171) as from the arrangement most familiar
(linguistically, culturally, and by virtue of his earlier study trips) for
the influential president of the Constitutional Court. All this was
done on a scale resembling (for the external observer) neo-
colonialism, with the ensuing underestimation of the own,
exclusively binding constitutional background (p. 173). According
to the author’s illustration, in the decision no. 23/1990 on the death
penalty,33 only the International Covenant on Civil and Political
Rights qualifies as a source of the law in Hungary at the time of
decision making, from among all those referred to. And even this
could hardly serve as a normative foundation by its having
exclusively established the “recognition of a development towards
the abolition of capital punishment” as a mere tendency, this
covenant having also (as valid in Hungary from 1976) served with
no difficulty the active capital punishment policy of the socialist
People’s Republic of Hungary. On the other hand, the Sixth
Additional Protocol to the European Convention on the Protection of
Human Rights and Fundamental Freedoms (1983) and the
Declaration on ‘Fundamental Rights and Fundamental Freedoms’
as adopted by the European Parliament (1989) had, at the time of
the decision taken by the Constitutional Court, no legal effect
whatsoever in Hungary. The fact that their reception was in fact
“disguised” with the help of the formula of “modern constitutions”
and other magical and in fact unidentifiable keywords (p. 67 and
ch. 4, para. 1.1) was just a step on the way that led to a situation,
in result of which now the author can illustrate on huge tables, with
two dozens of conceptual details, which German solution served as
the basis of which Hungarian actualisation of “human dignity” (pp.
69 et seq. & 76 et seq.), which of course included an import from
the German Constitution as well as of a number of German
Constitutional Court decisions (at times with official motives in
extenso) and several scholarly stands34 alike. This took place with
33 In Constitutional Judiciary in a New Democracy…[note 16], pp. 123 et seq.
34 Above all, Ronald M. Dworkin’s Law’s Empire and his Taking Rights Seriously referred
to in the decisions nos. 9/1990 and 21/1990 (Dupré, p. 91). In more detail, see László
Sólyom ‘The Hungarian Constitutional Court and Social Change’ Yale Journal of
International Law 19 (1994), pp. 228 et seq.

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such an enthusiasm and overwhelming routine that sometimes the


Hungarian Constitutional Court resorted (again, in a legally
unauthorised manner, i.e., arbitrarily) to external authority even in
cases when a perfectly adequate provision might have been
available in the very wording of the Hungarian Constitution as well
(p. 86). So the practice of “modern constitutions” being referred to
(as evident without further specification) may have served as an
enchantment of almost a mythological character, a mere captatio
benevolentiae (reminiscent of the ancient Greeks having sent
jurisprudents to other cities to gain experience before framing their
own constitution), the substitution of some alleged international
consensus by some resounding circumlocution (p. 164). For

“In fact, the Court often had in mind a very


particular legal system and interpretation of a right
and presented it as if this particular interpretation
and use were recognised by all legal systems in the
same manner.” (p. 165)

Besides the fact that the Hungarian Constitutional Court’s


president could ascertain the magical approaching, voluntary
harmonisation and even spontaneous unification of the
jurisprudence of diverse national constitutional courts as a fact
obviously provable, on what authorisation was the process of
universalisation of the decisions of various constitutional courts
based, in result of which it could produce a “globalisation of
constitutional jurisdiction”? What may have been the basis of the
fact that “as a study by the Hungarian Constitutional Court has
shown, even the diversity of constitutions does not necessarily lead
to different results in constitutional case law” and that
constitutional justices are adjudicating the conformity of domestic
laws to corresponding domestic constitutions until the point they do
arrive at an “independence of constitutional justice from the
constraints of national laws”?35 Maybe with the effect that a not too

35 László Sólyom ‘Sur la coopération des cours constitutionnelles: Introduction à la Xième


conférence des cours constitutionnelles européens’ in Rapports généraux sur la séparation
des pouvoirs et la liberté d’opinion dans la jurisprudence des cours constitutionnelles
[Budapest, 6–9 mai 1996] [ms] (Dupré, p. 165).

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distant future would bring about “an unprecedented movement of


export/import of law in which states were no longer essential
actors”,36 making perhaps continuous undisturbed concessions to
the individual, to the cult of entitlements without obligations (of
course, at the expense of the state, i.e., of taxpayers)?
It seems to be clear and unambiguously ascertainable by
today that mainly in those dramatically decisive times determining
the legal frameworks of our later development, “most of the cases
decided by the Court […] were not simple cases of interpreting the
Constitution […but…] political, or more precisely ideological
rulings.” (p. 159) As such, one may mention the invention—
through “the artificiality of its argument stretched to its limits […]
at its most absurd”37—of

“[t]he concept of constitutional criminal law,


whose aphoristic formulation—»The traditional basic
principle of criminal law, according to which a deed
is a crime once made so by the law, has become a rule
of guarantee (protecting rights and liberties) in our
present legal system by adding to it the additional
formula of nullum crimen sine lege
constitutionali«38—has permeated the practice of the
Constitutional Court so far.”39

4. Public Law Privatised with the State Targeted as a


Common Enemy The end result is quite thought-provoking. The
jurisprudence of the Hungarian Constitutional Court’s first term
was probably among the first even through all Europe in
acknowledgement of the right to healthy environment, the right to

36 Democracy without Borders Transnationalisation and Conditionality in New Democracies,


ed. Jean Grugel (London & New York: Routledge 1999) xv + 189 pp.
37 Sadurski Rights before Courts [note 11], pp. 254–255.
38 András Szabó ‘Alkotmány és büntetõjog’ [Constitution and criminal law] in Székfoglalók
a Magyar Tudományos Akadémián [Inaugurals at the Hungarian Academy of Sciences]
(Budapest: MTA 2000), p. 11.
39 László Majtényi ‘Lesz-e magánéletünk?’ [Will we have a private life?] Élet és Irodalom
XLVI (29 March, 2002) 13 in <http://es.fullnet.hu/0213/publi.htm>.

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relations of the same gender and children’s rights to identify their


fathers by blood; moreover, it provided an unprecedentedly one-
sided, absolute and interventionist scope of liberties in respect of
personal data protection depending exclusively on the individual
concerned.40 However, in its striving aimed chiefly at recognition
and legitimisation by the West, it may have also become
vulnerable, as in its self-built ivory-tower as a hiding-place it made
itself both unapproachable to and uninterested in sensitive social
issues, by having become content with being heard at times in form
of unilateral revelations. Withdrawn in invisibility, like a snail in
its shell, in a self-inflicted isolation, incapable of dialogue,
abhorring the human warmth of sociability, as some lonely fighter
who may only be admired—that is, consciously rendering itself
transcendent—, it did not even start integration into the state
structure with an entire lawyerly and academic community behind
it, into the societal feedback underlying any law and order—of all

40 Notably, to monitor the entire route of data processing, thereby guaranteeing the right to
know who used the data and when, where and for what purpose it was used (decision no.
15/1991).
In contrast, the resolution of the German Constitutional Court from nearly one decade
earlier (1983) was a circumspect, balanced decision evaluating the personality at any time
in social contexts. It was probably this that the Hungarian Constitutional Court’s president
may have found as needing further development, obviously in result of some more elevated
worldview. Namely, according to this decision— BVergGE 65, 1 in The Constitutional
Jurisprudence of the Federal Republic of Germany ed. Donald P. Kommers (Durham &
London: Duke University Press 1997), p. 325 (Dupré, p. 90, note 7)—of the Germans,

“However, the right to »informational self-determination« is not unlimited. The


individual does not possess any absolute, unlimited mastery over »his« data; rather,
he is a personality […] developing within the social community. Even personal
information is a reflection of social reality and cannot be associated purely with the
individual concerned. The Basic Law has resolved the tension between the
individual and society by postulating a community-related and community-bound
individual, as the decisions of the Federal Constitutional Court have repeatedly
stressed. The individual must in principle accept certain limits on his right to
informational self-determination for reasons of compelling public interest”.

And as opposed to the conceptual requirements reduced to sheer formalism of such a


Hungarian understanding of the rule of law, the decision of the Fr e n c h Conseil
constitutionnel (29 December 1998)—in a hope of serving the tangible values of common
good, beneficial for the whole nation—did by far not find it unconstitutional for the state to
cross-reference personal data on different data-bases for the purpose of double-checking tax
declarations submitted by citizens without informing them.

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which constitutional judiciary itself is just one of the serving parts.


Thus, adding that it has not even started dialogue with ordinary
courts either (p. 178), which relation is characterised by “a certain
rivalry rather than constructive co-operation” (p. 182), seems only
hypercriticism41 but at the same time also a core element shedding
some light on the Hungarian Constitutional Court’s autotelism.
For even in terms of a decade-old criticism,

“The court’s assertion of exclusive interpretive


power is highly problematic; in a constitutional
democracy, understandings of legality and
constitutionality are best promoted not by judicial
monopoly over constitutional interpretation, but by a
system allowing for simultaneous and parallel
interpretation by the political branches and by the
people.”42

So instead of anything more markedly sociable, it retracted


into an ivory tower, into the position of standing outside and above
everything, into the mist of clouds, from the sublime heights of
which it is only to communicate if it wants to and in the way it
wants to. Consequently, it became the embodiment of the
d y s f u n c t i o n a l i t y of our new state organisation following
Socialism and of the self-realising competition over rule of law
claims on human rights, in which actors rivalled with one another,
not only independently from but to the detriment of each other’s
competence, in which no public interest, no materially graspable
social goal has anyone responsible for it any longer, as each and
every of them functions self-centredly and self-propellingly,

41 Let us consider what is suggested by a style (with a corporative character behind it) that
starts from a doctrinal point of view while pondering the nature of the Supreme Court’s
guiding (abstract) decisions aimed at the unity of judicial practice for that they can be
subdued to the control by the Constitutional Court; then initiates a statutory amendment to
extort this from above; and finally—of course, without even trying to agree with the branch
of the judiciary—simply surpasses again the Constitutional Court’s competence stipulated
by the charter founding it with a constitutional force, and with noble simplicity, it just starts
to bring these decisions under constitutional control, by judging unconstitutional and
annulling some of these.
42 Teitel ‘Paradoxes…’ [note 15], p. 245.

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inattentive of others, and the over-activity or the extension of


competences by one actor may destroy the other’s efforts—without
any common responsibility, dialogue, moderation, or control. This
is the paroxysm of rule-normativism, distorted from the
parsimonious continental legal and statutory positivism of the end
of the 19th-century into Socialist legality, functioning as a
mechanical automatism, which enforces only rules, without
assuming responsibility for the humane order to be formed thereby
and for the practical outcomes of such an order as well. It is to be
noticed that the further distorted forms of this may prove to be even
more destructive than the dictatorship of Socialism was, as they
relinquished the crucial issues of the nation’s survival while they
suggested the apotheosis of irresponsibility under the seal of a rule
of law. For all this created a fetish out from what Socialism had
nihilised in law. For the time being, unfortunately, this
i d o l i s a t i o n of the norm-autocracy in the guise of
constitutionality has established neither the foundations of a
liveable and workable, comprehensive legal order based on ethics
nor a balance with equal regard to various sides, views, layers and
components when pondering proportionately upon them with
responsibility at all times.
The decade after the bitter half a century of Socialism was
characterised by miracle expectation, wrapped in supra-
historicity of some magical utopianism. For Socialism was actually
followed by the threat of falling into just another trap, notably, that
of becoming “guinea pigs” of neo-liberalism,43 by a “faith in the
ability of law alone to create and foster democracy […] and in the
power of words to achieve this.” (p. 187) Not surprisingly, in this
inefficient enchantment process the very phenomenon that
“Repetition of legal definitions, in a manner similar to some
magical incantation, was part of the reification process through
which words became law” (p. 188) had the somewhat degenerate
result suited to the above presuppositions.

43 Bennett Kovrig ‘Marginality Reinforced’ in The Legacies of Communism in Eastern


Europe ed. Zoltán Barany & Iván Völgyes (Baltimore & London: Johns Hopkins University
Press 1995), pp. 37–38 (Dupré, p. 179).

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Was our domestic or external world outraged that certain


parts of the state, relinquishing the indivisibility of national
sovereignty, may—by losing all control—act totally at will, with
each of them pursuing their idols, the self-generated practical
anarchy of some alleged democracy? The vision of ALFRED JARRY
(1873–1907) comes into view, or even more threateningly, the
queen’s cricket as LEWIS CARROLL44 schemed it in his Alice in
Wonderland, because if this is so, then the nation’s future will be
left, as a legally unsecured end-result, to a framework which is
allegedly under the rule of law but is in reality doubtlessly the
product of a kind of judicial arrogance, an octroi carried out
through preponderance.
The worst in the whole process was that actually this
presupposed the conscious atrophy of the inner forces of
law development, which resulted—in terms of internal relations—
in the lack of any adaptation (including, e.g., the withdrawal
without compensation of those rights that were ensured even under
Socialism) and—in terms of external relations—in the uncritical
adoption of Western solutions, so to say as mechanic text-
transplantations. Moreover, this process ignored whether these
solutions had perhaps already been outdated, heavily criticised or
even transcended in their countries of origin and it also dispensed
with the fact that the atrophied innovation ability might prove
unsuited for a reassuringly creative internal adaptation of these
(pp. 190–191).
So our Constitutional Court was motivated by an a-historical
utopianistic universalism when it “grounded on a sort of tabula
rasa fiction” by practically “negating the […] »legal culture«” (p.
192) at a time when it stipulated—insensitive of the domestic
milieu and needs; heedless of the own traditions and conditions
(either historical or legal or relating to the state structure); never as
a partner in a common cause but always from the heights of its
uncriticisability; considering the country (with its institutions and
people) as mere addressees, autocratically and arbitrarily—the
frameworks and also the details in merit of what it euphemistically
called the ‘rule of law’.

44 Pen name of CHARLES LUTWIDGE DODGSON (1832–1898).

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However, being inspired from outside did not lead in fact to


the unconditional reception of patterns imported for laying the
foundations of a constitutional renovation. The result was often
different (p. 104), as the model itself was sometimes
instrumentalised instead of a mere copying of it (ch. 5). Therefore,
it is especially timely to raise the question: In what direction did
the Hungarian decisions differ from the German constitutional
jurisprudence, by the way followed mostly both in topics and
doctrinal structuring? In terms of what philosophy did the
Hungarian disciple o v e r w r i t e t h e G e r m a n m a s t e r ? As
already seen, the Hungarian Court denied the social rights that had
been launched in some limited way during Socialism and
postponed the total recognition of human dignity before birth—in
contrast with the Germans, but making any concession to the
public opinion most probably exclusively in this case and only
now45 (ch. 5, para 1.2/a). Most conspicuously, ignoring the
balanced (although rather categorical) perspective of the German
Basic Law—“Everyone shall have the right to the free fulfilment of
his personality in so far as he does not violate the rights of others,
or offend against the constitutional order or the moral code”
(Article 246) whereas, according to the original German doctrinal
explication,

“Human dignity resides not only in


individuality but in sociality as well. Such dignity
requires the protection of the personality and freedom
of the individual, but must also promote the goods of
relationship, family, participation, communication,
and civility.”47

45 Commenting on the death penalty case, the president himself who put it forward, now
writes as a scholarly opinion that “According to the receptivity of the people to such slogans
and the repeated attempts to organise a referendum on the reintroduction of the death
penalty, it would appear that a large majority of the population remains in favour of it.”
Constitutional Judiciary…[note 16], p. 53, note 20.
46 “Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die
Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz
verstößt.“
47 The Constitutional Jurisprudence…[note 40], p. 305 (Dupré, p. 125).

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—, the Hungarian Constitutional Court took over from this


all only its first short part alone and, handling this in itself as an
“all-powerful provision”, it did not any longer ponder the
possibility of limitations, preconditions, additional obligations, and
the risk of the injury of others’ rights or other rights in parallel (pp.
120–122). Even in the motives of the decision declaring the capital
punishment unconstitutional in Hungary, the Court did not reckon
with the fact that there may be some people also with human
dignity in the society, who would be entitled to some kind of
protection against the inhumane wrongdoings and their obdurate,
anti-social perpetrators as possibly threatened by death penalty (p.
124). While the German wisdom looked at those rights due to all
humans objectively and in the context of a well-balanced social
interdependence between society, the individual and the latter’s
rights, the ambitious Hungarian student rendered the entitlement
in question absolute. “Such an individualistic vision is dissonant to
the general spirit of the German law […]. It has become an
absolute […], unconditional and unlimited right.”48 It seems that
on the ruins of Communism, in a society having practically fallen
apart, the Hungarian Court did not perceive any guiding star except
itself, and coming down from the mountain and looking around—
like once FRIEDRICH NIETZSCHE’s Zarathustra paraphrasing les
fleurs du mal of his epoch philosophically—, it saw nothing but
individuals “in isolation and fighting against the state to protect
their rights” (p. 122), where “human dignity surrounds the
individual in a sort of protective sphere, and thus isolates
individuals from each other.” This reductionist—“negative and
MANIchean” (p. 126)—approach, showing deep inner alienation
(scarcely transcending the childish defiance in man’s societal
development), sees from the outset an antagonism—that is,
irreconcilability and even as a chance, the community’s total
dissolution and its annihilation in and through the Ego at any
time—between the good individual, worthy of absolute human
dignity, on the one hand, and the bad and therefore to be tightly

48 “Un telle vision individualiste est dissonante avec l’esprit général du droit allemand […].
Elle devient […] un droit absolu, […] inconditionnel et sans limitation.” Delpeuch [note 32],
p. 592.

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controlled state, on the other (p. 126). All in all, such a thoroughly
privatist vision—if lifted within a public law perspective49—
atomises society from the outset and is capable of nothing but
anarchist formulation in its libertinist liberalism that there is
anyway. Because community development or the building of the
future is scarcely conceivable on the basis of a “selfish picture of
human beings as solely preoccupied by the realisation and
protection of their own interests and achievements” (p. 125) in any
other way than what we see going on as materialised in the growing
disintegration of Hungarian and other Central and Eastern
European societies, further promoted by huge a many unexpected
turns in their alleged transition.50
If the notabilities of the Constitutional Court thought they
were the SaintSTEPHENs (founder of the Hungarian statehood a
millennium ago) of our times, then even if they acted without
proper authorisation (i.e., misusing their powers and thus legally
arbitrarily), in respect of the qualification they may have been right
inasmuch as their decisions were not only singular acts within the
system change but, regarding the massive proportions of their
subsequent decisions and the dramatically unique impact of many
of these, they came to define the whole path of our transition to the
rule of law: its style, contents, as well as feasible progress
restricted from the outset by their constitutional intervention in the
former’s limitations. In result of the fact that “the Hungarian Court
[…] was seeking to import values or principles on the basis of
which the Court could lay the foundations of a new constitutional
order” and thereby “used imported law as a source of new criteria
for constitutional justice” (p. 154) under the pretext of
constitutional adjudication, the Constitutional Court took effective

49 The dysfunctionality of a civilist approach mixed in public law contexture is also


remarked as quite a misleading analogy by Teitel ‘Transitional Jurisprudence’ [note 20], p.
2023.
50 Cf., by the author, ‘Rule of Law between the Scylla of Imported Patterns and the
Charybdis of Actual Realisations (The Experience of Lithuania)’ and ‘Rule of Law – At the
Crossroads of Challenges’, both in the present volume, as well as Alfonsas Vaišvila ‘Legal
Personalism: A Theory of the Subjective Right’ in Ius Unum, Lex Multiplex (Liber
Amicorum: Studia Z. Péteri dedicata) Studies in Comparative Law, Theory of State and Legal
Philosophy, ed. István H. Szilágyi & Máté Paksy (Budapest: Szent István Társulat 2005), pp.
557–572 [Philosophiae Iuris / Bibliotheca Iuridica: Libri amicorum 13].

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control of the entire political process, pre-determining its basic


directions. That is, it subjugated the whole society—its political
classes, parties and governments and thereby also the original
intent at a genuine transition (to transcend the past in merit and
start to build a new nation)—to self-inflicted philosophies and
approaches, views of society and of man as well as to a whole series
of forced paths, coercions and prohibitions, ensuing from these.

5. A Future with no Past This same exposure and


helplessness, that is, being at the mercy of the West, appears also
in the impossible experiment of building a future without a
past clarified. “[T]his unease with the past is palpable”—so
much so that the Court, by occupying its most distinguished place
in the state organisation, utterly abandoned the assumption of a
stand to be taken in the dramatic issues of the present (through a
transition from the past), which was in fact highly expected of it. In
brief, “the Court […] never really addressed the past directly.” (p.
192) And when its inevitably over-politicised role-playing forced it
yet to do so, the result proved to be mostly a catastrophe: lifeless
as quite a doctrinarian deduction can at all be.

“In fact the Court seemed to make a point of


considering that there was nothing particularly
special nor problematic with this past and that its
adjudication function was as normal as in any other
Western country.” (p. 192)

Thereby—according to another analysis in depth—

“by repeating the mantra of the rule of law


(without a textual anchor in the constitution, and
under a highly arbitrary interpretation of the concept)
[…] the Court decided that its own highly arbitrary
interpretation of the rule of law should prevail over
politically defined understandings of the right mix of
legalism and substantive justice.”51

51 Sadurski Rights before Courts [note 11], p. 256.

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This is just the attraction to extremity with sui generis


fundamental differences effaced, about the mistaken partisanship
of which52 a monographic stand may have already concluded that

“Not much is gained, and much is lost in terms


of comprehending the complexity of the issue at hand,
by »normalizing« such dilemmas through analogizing
them to various routine constitutional dilemmas faced
by consolidated constitutional systems in their day-
to-day operations.”53

Of course, subsequent wisdom may see deep realisations in


this rule of law, built up with autocratic means by our Constitutional
Court, allowing itself the further recognition in terms of which
“constitutional court is one of the major actors of political system so
it cannot do as if it worked in the sphere of sheer theory.”54

6. Legality with Justice Silenced: Crimes and Unpunishment


The decision of the Constitutional Court, by terms of which the
possibility of processing the past “travesty of legality”55 through
criminal law gets contrasted with the “constitutionalisation of
criminal law”56 as ultimately enforced by it, shows distinctly the
Court’s corporate determination for formal interpretation by
narrowing (indeed: reducing) the very idea of the Rule of Law to an

52 E.g., Eric A. Posner & Adrian Vermeule ‘Transitional Justice as Ordinary Justice’
Harvard Law Review 117 (January 2004) 3, pp. 761–825 & in <http.//www.law.
uchicago.edu/academics/publiclaw/resources/40.eap-av.transitional.both.pdf>.
53 Wojciech Sadurski »Decommunisation«, »Lustration«, and Constitutional Continuity
Dilemmas of Transitional Justice in Central Europe (Badia Fiesolana, San Domenico
[Firenze]: European University Institute Department of Law 2003), p. 50 [EUI Working
Paper Law No. 2003/15].
54 László Sólyom in [as interviewed by] András Sereg Alkotmánybírák talár nélkül
[Constitutional justices without robe] (Budapest: KJK-Kerszöv 2005), p. 171.
55 Sadurski »Decommunisation«... [note 53], p. 2.
56 Szabó ‘Alkotmány és büntetõjog’ [note 38], p. 9, in terms of which “the reference of the
principle of nullum crimen sine lege […] to a domain transcending the criminal law proper
is the genuine provision for a guarantee.” (p. 6)

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understanding of legal security that assumes unbroken continuity


to the past—a continuity which cannot any longer be either
challenged or intervened with by legislatorial or other means. At
stake was no less than the issue of whether after the inglorious
collapse of a state having become criminal itself (by having
offences committed against its own properly enacted criminal code,
then gratifying this criminal service while also criminally
retributing for any eventual social initiative at their effective
prosecution), the successor state had to complete the proceedings
in criminal law of such deeds (especially of homicide and torture)
which had been previously made time-barred formally, that is, their
adjudication according to the law of the place and time of
perpetration, or it has, in the name and with the seal of its “rule of
law” but by belying any sound ideal of law, to assume and enforce,
in the new constitutional democracy, the MACHIAVELLIst cynicism of
the dictators’ murderous logic, suggesting that one can safely go on
doing the dirty work, taking care for one thing only: to erect a
power oppressing enough to last until the deeds implied by such a
dirty work can be declared prescribed or pardoned. However, this
decision of a stunning logic, directly and disproportionately
beneficial for the perpetrator’s side (which was received with noisy
celebration by many in a world measuring with dual measures), has
at once got into the focus of critical debate.
For in its decision no. 11/1992 (5 March), the Hungarian
Constitutional Court stipulated repeatedly and with an
unprecedented sharpness that

“With respect to its validity, there is no


distinction between »pre-Constitution« and »post-
Constitution« law. The legitimacy of the different
(political) systems during the past half century is
irrelevant from this perspective; that is, from the
viewpoint of the constitutionality of laws, it does not
comprise a meaningful category.”

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And what obviously follows from this—since, from now on,


“constitutional review does not admit two different standards for
the review of laws”57—testifies to an utter, let us say,
“constitutional indifference” towards the legal actualities of the
Communist dictatorship.
From the correct description of what the statute of limitations
is about—“The statute of limitations in the criminal law guarantees
lawful accountability for criminal liability by imposing a temporal
restriction on the exercise of the State’s punitive powers”—as
reflected to the bill just voted for by the Parliament, which had
declared the legal passing of the prescription’s time interrupted (in
so far as—as it was termed by the bill—“State’s failure to
prosecute for criminal offences was based on political reasons”),
well, the Court concluded that “Failure to apprehend [the criminal]
or the dereliction of duties by the authorities which exercise the
punitive powers of the State is a risk borne by the State.” Thus,
according to its judgement, in want of previous express statutory
provisions to the opposite, the period of limitations can also expire
through a lapse of time relieved from official procedure by a
dictatorial (i.e., again, criminal) rétorsion of any victim’s legal
initiative at prosecution. Consequently, no subsequent
differentiation whatever, no comprehension detached from the
dictatorial past can now affront the reassessment of the cynicism
implied by such an inhuman logical formalism which may even
degrade the future becoming captive of complicity, trampling from
the outset the ethical foundation and humanity of the new scheme
of an alleged rule of law under foot: even under the constitutional
guise of the reborn and democratic Republic of Hungary. For—as
the verdict goes on—“If the statute of limitations has expired, the
person has a right to immunity from criminal punishment.”58
A recent monographic stand, overviewing issues ranging
from lustration to facing with the past in criminal law in the
region,59 presents this decision as a veterinary horse with the
potential of featuring up all such queries, formalistic floating and
57 Constitutional Judiciary… [note 16], p. 220.
58 Idem., p. 223.
59 Sadurski »Decommunisation« [note 53], 50 pp. & as reconsidered in his Rights before
Courts [note 11], ch. 9, pp. 223–262.

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uncontrolled rush in loosing contact with anything sensibly lifelike.


For, as the above author deems, “It is rather hard to see what values
underlying the principle of legality support such a conclusion.”
Namely, the conditions referred to by the decision above, notably,
the “failure to apprehend” and “the dereliction of duties” do let the
limitations expire, of course, as accidental occurrences (due to
incidental negligence or percentage of failure) in a society
operating normally as due under the Rule of Law. But in our case
concerned it was the system itself that degenerated, silencing its
own law and order. With its flagrantly unlawful intervention
brutally retaliating any potential lawfully retaliating intention, the
past system annihilated, with its own law-related activity, the very
normality the Constitutional Court’s discretion now claims to have
been existed. For, as known, all these limiting and excluding
conditions have (by their nature, designation and systemicity)
arisen by far not just as having turned up in a by-chance manner—
“as if the »risk« in question were a matter of the negligent
behaviour of the state”—but, just to the contrary, they “were part
of the purposeful policy of the Communist state”.
The author surveyed here emphasises clearly that fully
irrespective of the fact (or, exactly due to it) what sequence of
conclusions the Constitutional Court set up for itself arising from
the transition’s story traced back to negotiations and from a
constitutionally fresh new start in principle, a legal equation like
this between the dictatorial past and the allegedly constitutional
present is not only unfounded but deeply unjust and also morally
intolerable. Moreover, the Constitutional Court fails to notice
opposites here, by mixing them up as well, as

“Here the non-identity of the »state« before


and after the transition is most crucially relevant, and
the fiction of continuity at its most absurd. For, in
terms of the Communist state, it was not a matter of a
»risk« at all but rather of deliberate and lawless
protection of offenders, whiles on the part of the
successor state the »price« in the form of non-

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prosecution is unrelated to its negligent criminal


policy.”60

That is, in other words, the decision legally equated


situations that are not only incommensurable but mutually flatly
excluding in both essential ethoses and value-contents, stretching
between the extreme border values of the democratic proclamation
of the full ideal of the Rule of Law, on the one hand, and the
dictatorial negation of the foundational traits of any rule of law, on
the other. (By the same stroke, the decision also equated the
involved human intentions and responsibilities, as well as the
possible and actual judgements regarding the fate of the afterlife of
the innocents and victims alike.)
We have to remember that situations of such unspeakable
brutality and depravity (assassination and torture) are at stake here
whose judicial processing and judgement is by now asserted all
over the world by even human rights activists, rather cautious
otherwise. Having given up their political fiction with which they
were flooding us until recently and which presented the successor
state as suspicious from a human rights point of view in case it
dared investigate in the legacy bequeathed to it, and having at last
been (perceiving the skeletons falling out again and again from the
cupboards of continents from Latin-America to Africa and pressing
the successor societies to take a stand in regard with this still
unresolved issue which may even hinder their further democratic
development) slowly changed their focus, well, these same activists
now proclaim the successor state’s duty to face with the past, even
as—and within the framework of—a formal obligation, to be
internationally acknowledged.61
Of course, nobody thinks in terms of (in themselves
respectable) principles allowed to be put aside but in the necessity
and significance of pondering and balancing amongst various
values (whether or not complementing to or conflicting one

60 Sadurski Rights before Courts [note 11], pp. 253, 254, 254–255 & 255.
61 Cf. especially Juan E. Méndez ‘Accountability for Past Abuses’ Human Rights Quarterly
19 (1997), pp. 225–282, and also—as translated—Kiáltás gyakorlatiasságért a jogállami
átmenetben [A cry for practicality in transition to rule of law] ed. Csaba Varga (Budapest:
[AKAPrint] 1998) 122 pp. [A Windsor Klub könyvei II].

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another), each of which is to be respected in its own way—as


dichotomised, for example, in tension between prospectivity and
equal justice,62 legality and substantive justice,63 or (in the
terminology of the Hungarian Constitutional Court’s jurisdiction)
legal security and material justice, preferably not to be absolutised
in a sober judgement. It is the more so as

“a lawless and reprehensible refusal by the old


regime to punish those who committed some of the
most severe crimes as defined under the law valid at
the time, seems to effectively vitiate the general moral
reprobation of various forms of retroactivity in
criminal law. Put simply, it would seem perverse if the
crimes committed in the past were to go unpunished
solely because those who committed them were part
of the system that protected them, and made sure that,
as long as the system lasted, their crimes would
remain unpunished.”64

Viewed from the perspective of end-results, the stand taken


by the decision in question can indeed be interpreted (even if

62 In the case of, e.g., RUTI TEITEL. For Teitel ‘Transitional Jurisprudence…’ [note 20], p.
2024 reminds that “For the Berlin court, the controlling rule-of-law value was what was
»morally« right, whereas for the Hungarian Court the controlling rule-of-law value was
protection of preexisting »legal« rights.” Yet we know that to have any moral foundation,
some commonly shared values are presupposed, while “moral homogeneity […] is anathema
to a liberal […] state.” (Sadurski Rights before Courts [note 11], p. 231) This is just about
which the theoretician might have written, with outrage rightful from this aspect, as a liberal
argument to be rejected from the outset, that “An emphasis on corrective justice will divide
the citizenry into two groups—evildoers and innocent victims.” Bruce Ackerman The Future
of Liberal Revolution (New Haven: Yale University Press 1992), p. 71. At the same time, the
Hungarian Constitutional Court president’s recollection refers exactly to such a TEITELian
moral/legal duality, presenting his one-time inclination to extremity as a paradox: “This
debate is morally insoluble. I find it right to have, as a constitutional judge, put legal
security first. It is a different issue that I shall never be able to reassuringly settle the
question of conscience that I have not fulfilled the rightful claims of several victims.” László
Sólyom in [as interviewed by] Péter Takács ‘»A morális alkotmányértelmezésnek a szöveghez
kötöttnek kell lennie«’ [Moral constitutional interpretation has to be linked to the text]
Fundamentum 2001/1, p. 71.
63 E.g., in the case of WOJCIECH SADURSKI.
64 Sadurski Rights before Courts [note 11], p. 255.

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wrongly) as an encouragement to crime, because it places the grace


into the perpetrator’s hand, allowing the latter to absolve itself, by
administering that by due way and in due time, with effect at its
own discretion. And it makes the successor state (innocent of the
predecessor dictatorship’s crimes in fact) inevitably an accomplice
to crime whether or not it wants this, because in terms of the
above—transcending a wicked predecessor notwithstanding—it
can have no other choice than declare the wrongfully unprosecuted
offences unprosecutable as legally final.
At the same time, it is obvious that such an exaggerating,
profoundly artificial solution (destructive to the very chances and
ethical foundations of a genuine re-start from the outset) was not
inevitable; at least, it did not follow from the texture of the valid
constitution. Because

“by non-prosecution of these crimes, and by


thus allowing them to become time-barred, the old
regime successfully brought about a state of affairs
practically identical to what it could have achieved by
conferring upon itself and its members a blanket
amnesty. Consistently with what has just been
suggested, there is no special, conclusive obligation
deriving from the principle of legal continuity to
meticulously observe those privileges, and no obvious
reason why to prosecute despite them would be an
outrage to the principle of non-retroactivity of
justice.”

And, along with the associated malady often referred to in


this context, i.e., extremism, for the most part categoricalness and
inflexibility have to be mentioned here, that is, the lack of the
intention to search for any in-between solution or a compromise.
Now as always, the situation is not different:

“The range of options is much broader than


either full observance of all the entitlement-

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conferring rules of the predecessor system or a


revolutionary rupture with the legal past.”65

Consequently, we cannot but make the severe ascertainment


according to which “the intervention of the Court […] can be seen
as an arrogation of the power, by the Court, to dictate the terms of
the transition”.66
The bitter dilemma arises, when the Constitutional Court’s
pondering with its simplifying extremism, subordinating everything
to its own one-focussed view, inquires into the ultimate issues of
existence, the meaning of life, being solved and unsolved at the
same time: “What is more important? Does man exist for the rule
of law or does the rule of law exist for man? Or does the rule of law
exist for itself?” This very dilemma is, if formulated at all, by far
not any longer a result of predestination but of sheer incidence and,
in it, of cultural misery. As a matter of fact, and quite alone in the
whole region,

“Our society was judged unsuited to face with


the past by the Constitutional Court with its decisions
from »above«, while in Germany the wise and precise
legal thought addressed the problem itself, thereby
allowing space for social debate as well.”67

7. Rule of Constitutional Court Dicta, not of Law According


to a self-characterisation looking back, “The criterion of the
integrity of the new system was to constantly demonstrate the rule
of law.” This demonstration proved in itself an open assumption of
conflicts as, from the very start, “The possible contradiction

65 Idem., pp. 261 & 262.


66 Idem., p. 256.
67 Tamás Rumi ‘Szembenézés a jogállam elõtti múlttal – a német példa és tanulságai,
különös tekintettel az elévülés kérdésére’ [Facing with the past prior to the rule of law:
lessons drawn from the German instance, with special consideration to the issue of
limitations] Collega [Budapest] IX (October, 2005) 4, pp. 45–51, quotes on 46 & 51.

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between justice and the guarantees of the positive law is


programmed into this paradox concept [»revolution through the
rule of law«].” For “no interest can break through the formal
requirements of the rule of law”,68 about which we may have
already seen that these are something which the Constitutional
Court itself is establishing through elaborating its “invisible
constitution”, available exclusively from within its own vision,69 of
course, that is, arbitrarily and posteriorly. Only provided that the
rule of law can be meant to be reduced to formal security in law (by
“the Hungarian Court [having] posited a new constraint on the
state: an individual right to security.”70); that “mother rights” can
be produced out of the jurisprudence of foreign countries; and that
by further derivation of laws (narrowing or broadening in given
cases), the justices are free to operate in an unrecognisable
distance from the very wording of the valid Constitution—well,
then we can agree indeed to the conclusive force of the statement,
according to which

“It is this approach with which the


Constitutional Court could transform the great
political-ideological debates of the transition into
problems of constitutional law and thereby neutralise
them.”71
68 Sólyom in Takács [note 62], pp. 69, 69 & 71.
69 “[T]he starting point is the totality of the Constitution. The Constitutional Court has to
continue determining in its interpretations the principled bases of the Constitution and the
rights laid down thereby and establishing a coherent system by means of its judgments,
which as an »invisible Constitution« serves as a standard benchmark of constitutionality
above the Constitution which is nowadays being amended in everyday political interest”
[concurrent opinion to the decision No. 23 of 31 October 1990]; cf. also László Sólyom
‘Introduction to the Decisions of the Constitutional Court of the Republic of Hungary’ in
Constitutional Judiciary... [note 16], pp. 41 et seq. Cf. also András Sajó ‘Reading the
Invisible Constitution: Judicial Review in Hungary’ Oxford Legal Studies 15 (1995) 2, pp.
253–267 and K. Füzér ‘The Invisible Constitution: The Construction of Constitutional
Reality in Hungary’ International Journal of Sociology 26 (1997) 4, pp. 48–65.
70 Teitel ‘Transitional Jurisprudence…’ [note 20], p. 2023.
71 Sólyom Az alkotmánybíráskodás kezdetei…[note 17], p. 689. This key sentence is
forwarded in English with substantive variations: “The existence of the Constitutional Court
during the transition […] allowed the transformation of political problems into legal
questions that could be addressed with final, binding decisions”. Sólyom ‘The Hungarian
Constitutional Court…’ [note 34], p. 223.

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This also allowed the Constitutional Court to prescribe, by


consequently enforcing its own will on the country and on its
people, the character and extent of the distance that can be taken
from past dictatorship, the degree of the velvety character of this
revolutionless transition, and the impossibility of any definite
action to be undertaken—beyond the daily routine of old and well-
balanced Western democracies. All these may have contributed to
the undisturbed survival of the power relations of the past and the
unchanged inequality of the access to goods for some as inherited
from Socialism, moreover, as having been sealed by this new rule
of law, all these are inaugurated now as our local constitutional
democracy. Because this forum, authorised to constitutional
adjudication but grown up to become the most powerful, actually
recognised nothing but continuity with the past, a stronghold of
a new-old legality based upon legal continuity, the inviolability of
past relations if once established, as well as the absolutisation of
guarantees idealised as civic rights, both untouchable and
inviolable.72 This has perplexed even an American liberal
constitutional scholar who felt that not even the Court’s famous
decision on statutory limitations in facing with the past was so much
concerned with prescription as rather, and first of all, with the query
of who is more powerful in Hungary. For—according to her—

“The ZETENYI case stands for the proposition


that the authority to assess the legality of the prior
regime does not lie with Parliament, but instead with
the Constitutional Court” and thus, as “a
controversial power grab” that “enables the court to
operate in a counterrevolutionary fashion while
increasing judicial power”, “the ZETENYI case could
be less about the rule of law than about institutional
distrust.”73

72 Sólyom Az alkotmánybíráskodás kezdetei… [note 17] pp. 542–544. Cf. also András
Bragyova ‘Constitutional Law as Limit to Legal Change: The Constitutional Court and the
Backward-looking Laws in Hungary’ in The Role of Judicial Review Bodies in Countries in
Transition [International Symposium, Nagoya University Center for Asian Legal Exchange,
29–30 July, 2005], pp. 1–10.
73 Teitel ‘Paradoxes…’ [note 15], pp. 246, 244 & 246.

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On the final analysis, all this relates also to the burning issue
of legitimacy. For “the court’s emphasis on certainty of the law
masked its own interpretive leaps and exercise of discretion” and
thereby “[n]agging questions underlie the court’s formalism.” It is
even more so as the concerns themselves whether and to what
extent the court’s activity may in fact “imply a moment of illegality,
a glitch in the rule of law as the court has defined it” have only
been addressed by its very “clinging to the fiction that a state under
the rule of law cannot be—and was not in the case of Hungary—
created by undermining rule of law”, eventually “The court […]
dismissed questions about its own legitimacy.”74

8. A Sliding Self-image The Hungarian Constitutional Court


has never confronted itself with its own self openly. As if with some
strange modesty, it has always presented its own creature here and
now (to affect the destiny of the whole country) as an evident
choice with no alternative at all.75 For instance, in the
beginning, the president attributed only “a shaping of competence”
to the Court,76 then circumscribed the unspoken, namely by stating
that

“I am a convinced activist, unless we mean by


activism someone transgressing his competence.
Activism means that the court undertakes a decision
even in border situations.”77

74 Ibidem., pp. 245–246.


75 It is precisely such a context about which it is subsequently established that “the
asserted necessity […] is highly problematic. It is a non sequitur to say that if a new legal
system wants to observe the rules of legality, it must adhere to prior settled law no matter
what its content”, independently of whether or not the Court has been used to conceal its
“arrogation” by “presenting the matter as a simply dichotomy” that, owing to their sheer
artificiality, may exclusively “tend to blur rather than clarify the real dilemmas raised”.
Sadurski Rights before Courts [note 11], pp. 262, 259 & 260.
76 László Sólyom ‘Az Alkotmánybíróság hatáskörének sajátossága’ [The specificity of the
competence of the Constitutional Court] in Tanulmányok Benedek Ferenc tiszteletére (Pécs:
[Janus Pannonius Tudományegyetem Állam- és Jogtudományi Kar] 1995), pp. 5–34 [Studia
Iuridica Auctoritate Universitatis Pécs publicata 123] as well as Sólyom Az
alkotmánybíráskodás kezdetei… [note 17], pp. 157–182.
77 Csilla Mihalicz ‘Interjú Sólyom Lászlóval, az Alkotmánybíróság volt elnökével’ [Interview
with László Sólyom, the ex-president of the Constitutional Court] BUKSz (Winter 1998), p. 437.

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However, seemingly he did not even assume the


contradiction inherent in that the Court realised “direct
participation in the normative creation of the constitutional order of
the law-based state”78 by erecting a constitutional order for the rule
of law arbitrarily, with no due authorisation, thereby unavoidably
destroying the goal through the means. And today it can be
declared as a fait accompli, an evidence in the utilitarian silence
kept by all parties in the Parliament with a view to short-term
political interests—without this declaration causing the least
sensation in either the profession or in the press79—, that its acts
do in fact “appear as real amendments to the Constitution”,80 as
they “implement a trend of positive norm-formulation” by
“transforming their construction of the Constitution into rules
[…which…] constitute a specific layer of material constitutional
law”. Thus, on the final account—and on the one hand—,

“it depends on the choice of the Constitutional


Court when and by means of which general clause
and according to how strict criteria of basic rights it
adjudicates. If it starts out from the general clause of
the right to human dignity, it can declare new rights,
thereby elevating them to the quality of basic rights”,

78 Přibáň ‘Moral and Political Legislation...’ [note 21], p. 17.


79 We can only wonder at the fact (or explain it by exactly this) that DUPRÉ’s book was
accurately reviewed in Hungary by G[ábor] H[almai] ‘Alkotmány és alkotmánybíráskodás a
rendszerváltozások után’ [Constitution and constitutional judiciary after the political
transitions] Fundamentum 2004/1, pp. 211–215 & Renáta Uitz ‘Az emberi méltósághoz való
jog és a magyar demokratikus átmenet’ [The right to human dignity and the Hungarian
democratic transition] Fundamentum 2004/1, pp. 216–220, and was annotated by Imre
Lévai in Central European Political Science Review 4 (Summer 2003) 12, pp. 177–179 &
András Jakab in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 64 (2004) 1,
pp. 243–246, who all seem to have failed to perceive the cardinality of that which exactly
distinguishes our continental sensitivity in the sine qua non necessity of prior positive legal
founding of judicial decisions from the materiality of Anglo-Saxon case law, which can
explain in case of M. A. Sanderson alone in his review—The Modern Law Review (2004),
pp. 537–540—to have perhaps also overlooked the actual message of the book; interestingly
enough, by the way, not re-thematised again by its author in her later workshop paper
[Anticipating Membership Importing the Law of the West <http://www.iue.it/LAW/
Events/WSWorkshopNov2003/Dupre_paper.pdf>] or elsewhere.
80 Sólyom Az alkotmánybíráskodás kezdetei… [note 17], p. 258.

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while—perhaps only as an example, on the other hand—

“indeed the rule of law is the most suited as a


basis of reference for the Constitutional Court to
establish rights and principles which are missing
from the Constitution itself.”81

But all this was not self-evident even for fellow justices
assembled in the Court themselves. One of the constitutional
justices for instance, who had ever cultivated both scholarship and
practice in especially public law at the highest level, and as such,
he himself rivalling for the first presidency of the Court, felt
compelled to declare in his dissent already in the earliest times
that

“At this time, from among the constitutional


courts operating in the world […] the Constitutional
Court of the Republic of Hungary has the broadest
authorisation and store of instruments linked to such
an authorisation for enforcing the Constitution.
However, not even this extremely broad statutory
authorisation is unlimited: it does by far not mean
that the Constitutional Court can do anything it finds
necessary in the interest of the Constitution”.82

That is, accepting as perhaps the most comprehensive


specific characterisation that Communism in our region has in
general been followed by “system transformation […] within the
framework of law and by the law”,83 then this channelling through

81 László Sólyom ‘Alkotmányértelmezés az új alkotmánybíróságok gyakorlatában’


[Constitutional interpretation in the practice of the new constitutional courts] Székfoglalók a
Magyar Tudományos Akadémián 2001: Társadalomtudományok [Inaugurals at the
Hungarian Academy of Sciences 2001: Social Sciences] (Budapest: Magyar Tudományos
Akadémia 2005), pp. 452, 453 & 464.
82 Dissenting opinion of Géza Kilényi to the Constitutional Court’s decision no. 57/1991 (8
November).
83 Mirosław Wyrzykowski ‘Selected Problems of System Transformation’ in Rechtsfragen der
Transformation in Polen Schweizerisch–polnisches Kolloquium, ed. Josef Aregger, Jerzy
Poczobut & Mirosław Wyrzykowski (Kraków: Wydawnictwo Baran i Suszczyńsi 1995), p. 10.

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the law was implemented in Hungary in no other way than by a


kind of “elegant flying to and fro above the legal system”, as
another justice of the Court sharply remarked.84
As the message of our system transition addressed to people
at large, another justice from the Constitutional Court now looks
back to the chance of a new nation-building wisely, and says: “even
if we received it without our co-operation, it will not make us any
happier without our own efforts added.”85
Well, it is this field where the Constitutional Court may have
undertaken too much indeed, even instead of others, outrunning
certainly numerous institutions dedicated to a formative role,
including the embodiment of the sovereignty of the nation in the
Parliament as well.

84 Imre Vörös in [as interviewed by] Gábor Halmai & Csaba Tordai ‘»kevesebb lesz az
elegáns röpködés a jogrendszer fölött«’ [“»There will be less elegant flying to and fro above
the legal system«”] Fundamentum 1999/2, p. 68.
85 János Zlinszky ‘Nyertesek és vesztesek a rendszerváltás során’ [Winners and losers in the
political transition] in Magister artis boni et aequi Studia in honorem Németh János, ed.
Daisy Kiss & István Varga (Budapest: ELTE Eötvös Kiadó 2003), p. 1027.

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WHAT HAS HAPPENED


AND WHAT IS HAPPENING
EVER SINCE
(In Remembrance of Deportations to
Forced Work Camps at Hortobágy)*
(Preliminaries to a Betrayal) Our shame is twofold. Firstly,
we feel ashamed for having let all this happen and, secondly, for the
fact that Hungary has in fact still not faced all this, up to the
present day.
Nearly sixty-five years ago, when the so called free world
(first, the conquered Western Europe, then, the similarly attacked
Great Britain, with the United States lining up behind them)
entered—against two of the three aggressive dictatorial
superpowers threatening the world with their direct responsibility
for launching the war, the German Third Reich and the Japanese
Empire—into a military and political alliance with the Soviet
Union, they, as the repository of the Atlantic idea with an
overwhelming desire for world peace, took, deliberately or not, the
initiative in a new, not less imperialistic conquering, notably, the
Soviet-type re-division of the world, which, in addition, proved to
be an ideological one, aiming, besides economic exploitation, at
ruthlessly expanding its own totalitarian ideology and politics.
Irrespective of the original intentions motivating the strategic
planning and political bargains on behalf of the various actors, the
final outcome was a combined result of the actions of all those
involved, due to which the fate of Central Europe and the Balkanic
South-Eastern Europe became sealed for the following half-century
as the captive of an emerging moloch, the Third Rome with Asian
traditions. What followed in Hungary was Soviet rule. It was
egocentric, as it demanded complete submission to its rule through

* Prepared as outlined in the ending note 16 and first published as ‘Ami megtörtént, és ami
azóta történik (A hortobágyi kényszermunkatáborokba hurcoltatások emlékére)’ PoLíSz
(2005. május), No. 84, [Külvilágunk – belvilágunk, 5], pp. 34–42 & <http://www.krater.hu/
site.php?func=polisz&file=cikkek&cnr=515>.

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destroying all linkages and textures ever once established in those


subdued societies, in fact by transforming man himself. In order to
achieve this relentlessly, it did not refrain from releasing and
appealing to the basest instincts. Besides the handful of ardent
adherents, in founding its own regime it relied on the most
miserable layers of any society, on those lacking any education,
those without roots, those far away from civility of the middle
classes, those who could be gained for any cause on the cheapest
price. Experience from crises shows, sadly, that such marginal
layers are eventually inevitably joined by masses of both those
driven by sheer momentary interest and those propelled by fanatic
hatred.1 Therefore, as a paradox of the moral renewal following the
war (with a bad conscience left behind), the orgy of the institutional
destruction (devastating both man and his humanistic culture with
wild fury) of everything built up by Christian morality in Europe for
a thousand of years in this half of Europe of a population of
hundreds of millions was to end in the latter’s victimisation.
Direct and uncontrolled procedures, developed in wars,
deprived of any moral limitation and driven solely by
“revolutionary” utility, with momentary passions and profiteering
in the background, became institutionalised in and by the
victorious Soviet empire. These did include barbarian, uncivilised
behavioural patterns giving free rein to base instincts which were
used even by so called brown dictatorships not in military actions
but, among others, in the German SD- and SS-controlled policing
actions (in the course of alleged state security retaliations and the
rapidly degenerating KZ-practice2); in the capture of prisoners
during Japanese jungle wars, and then (let us notice here the shift
in the negative direction), in the red occupation; in prisoner camps
on behalf of each and every defeater (in German areas, especially
in ones run especially by the Americans, deliberately exposing the

1 It is no mere chance that both categories above have been practically mixed together, as
the psychiatric reaction to the revolutionary fever following the First World War. See, e.g.,
Gusztáv Oláh dr. Politikai psychopaták [Political psychopaths] (Budapest: Eggenberger n.y.)
12 pp. [lecture by the director (and ministerial counsellor) of the State Mental Hospital at
Lipótmezõ, Budapest, at the 8th National Assembly of Hungarian Psychiatrists] [special
publication from the issue 19–20 of Népegészségügy (1922)].
2 I.e., Konzentrationslager [concentration camp].

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vanquished to physical annihilation); and, finally, in the murderous


forced exodus of the German civilians, having settled in the North-
East hundreds of years ago, driven back to their motherlands. True,
Hungary’s military occupation by the mighty Soviet victory had
been followed by a short-lived coalition period in which, however,
the ideal and moral capital of any civil alternative was rapidly done
away with, degrading anyone to forced companion of route, by a
Communist threat supported by Soviet occupants. So first, local
Communists penetrated every institution as deeply as they could,
forcing democratic entities to subduing co-operation. And after
their Communist takeover had been accomplished with brutal
policing means, next to ones usual in a civil war, they forced their
program (initially by means of a much-promising propaganda)
more and more uninhibited and unlimitedly. This program was
schemed to implement a European expansion of Asian Russian
Bolshevism, upon the basis of an artificial chaos, a nihil arising out
of the total destruction of the national past, identity, and civic
presence, only to be based by a “new” type of man to be born on
this terrain.
It was the conscious lack of anything reminding of traditional
ethics with an inhuman rage that lived on in this new and artificial
medium3 which, in its aggressive drive to be expanded, did from
the beginning intoxicate the Soviet world war victory with a cruel
Bolshevism of half a century behind it and growingly predominated
by the raging paranoia of the Soviet leader in imperial enchantment
of his mighty rule, inducing conflicts and posing threats worldwide
repeatedly. The British wartime prime minister was the first to
realise in his speech at Fulton that an Iron Curtain had descended
in-between, starting a cold war among the victors of yesterday.
Then, the Communist International had banned Yugoslavia as
enemy after the unconditional subordination of TITO as one-time
fighting partner to Moscow had failed.
Therefore the Soviet empire, with all the extraordinarity
artificially generated, a few years after the World War Two was to

3 Robert Nisbet The Quest for Community A Study in the Ethics of Order & Freedom (San
Francisco: ICS Press 1990) 272 pp. presents the role of war and Communist movements as
surrogates in want of a genuine community, among others.

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present again an eschatological fate divide forcing everyone to


choose in such a tormenting final clash between the Good and the
Evil. Or, everything appeared to be in preparation for a new, more
bloody and totalitarian World War Three, conceived of as some
profane Last Judgement, with every event taking from then on the
inevitable form of some obscure, unhinged danse macabre.
For needless to say that Asian despotism and Byzantine
rhetoric and audacity merged in the Muscovite Third Rome which,
in forms reminiscent of Biblical prefigurations and in an
atmosphere of chiliastic expectations, felt entitled to intervene by
any means in fighting the evil preconceived by it.4 Its homicidal
machinery must have destroyed half a hundred million lives (tested
earlier in mass proportions during the Spanish civil war) by the
time when their invader hordes looting and raping (in replacement
of the fighting elite units of the Red Army) arrived at the brim of a
civilisation made alien and loathsome to them,5 namely to Central
and Eastern Europe. Within some years, before the Peace Treaty
was finally concluded in 1948, General VOROSHILOV as the
plenipotentiary representative in Hungary of the Allied Control
Commission could have reminded the Prime Minister of Hungary
with enchanting ease that in case of non-deference, entraining the
populace of ten millions of Hungarians to Central Asia or Siberia
would pose no problem for him logistically. Well, dragging away
masses, picked at random from amongst the civilians transformed
into prisoners of war, to forced labour camps beyond the Ural;
lifelong deportation to gulags of civilians feigned as court-
martialled in one or two minutes’ time in Russian, a language
unintelligible to them; elimination of civil political enemies by
Soviet military security agents—such and similar unscrupulous

4 Ironically, see the scholarly analysis by an authentic author, descendant of the equivalent
to the GPU-founder Polish–Russian FELIX DZHERZHINSKII in Hungary, in Tibor Szamuely The
Russian Tradition ed. Robert Conquest (London: Secker & Warburg and New York: McGraw-
Hill 1974) xi + 443 pp.
5 The Soviet rule degraded even writers to put their talents in the loyal service of the hatred’s
ideology. For example, Ilya Ehrenburg’s pamphlet The Germans [1944]—of which I could
not find English, French or German edition but which became translated into some of the
sovietised territories’ languages, e.g., A németek (Budapest: Szikra 1945) 26 pp. or Ob
Němcích (V Praze: Naš vojsko 1946) 53 pp.—presents the enemy as a target to be destroyed
and extirpated, without sparing even its ridiculised and humiliated culture.

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practices set examples for STALIN’s best Hungarian disciple,


RÁKOSI, and his neophyte henchmen. As soon as they seized power,
their Communist party, with its uniformed terror organisations and
army of agents, with their administration by local councils in form
of soviets (built out systematically from the 1950’s) and the all-
powerful personnel departments at each and every place of
employments, grasping absolute political control over the
professions and the labour, were all dedicated to one single aim:
the Communist “transformation” of all society’s components,
including man himself and his environment, i.e., even Mother
Nature.

(“Deportation” with Consequences) The circle of victims


whom we today commemorate as deportees (according to the
terminology used in the campaign calling for atrocity by the party
central newspaper Szabad Nép [ironically: Free Nation] and to the
official wording6 of the time, in want of anything better but totally
inaccurately) was formed on the basis of various considerations and
under the widest variety of pretexts, quite randomly but in
satisfaction of their central or local, politically or economically
driven momentary needs.
These people were brutally dragged away from their homes
mostly in the night, without previous notice, for the most part with
all their family, deprived of their movable and immovable property
with immediate effect (except for some domestic animals, a meagre
stock of clothes and kitchen utensils). They were then taken
(without valid legal authorisation, with false pretence to be enemy,
within the action of the ÁVH [State Defence Authority],
intentionally exposed from then on even to risk the loss of their very
lives) to closed and uninhabitable, forced domiciles kept under

6 “In the instructions of the Ministry of the Interior [No. 00384/1950 (July 13, 1950), file
IV], there is neither reference to the statutory provision on the basis of which the measures
against those displaced have taken place nor does it give any legally usable naming of them.
As far as their indication is concerned, the term »displaced persons« is used. This term is
so far unknown in our law […].” A note by the Police Colonel—Head of Major
Department—László Sebestyén to Comrade Deputy Minister Tibor Põcze [in Hungarian
National Archives, XIX–B–1–j, Box 40, 106.00269], as kindly provided to me by ZSUZSA
HANTÓ.

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armed control, made to do forced work often including children. All


this happened without any official record, work contract and wage
agreement, and with no institutional (social, healthcare and
educational) supervision, and the sufferers were exposed, night and
day, to the brutal harassment by their persecutors, trained for
senseless revenging violence. Overall, they were more than seven
thousand. They were dragged away mostly from hamlets near cold-
war Western and Southern frontiers of the Soviet-controlled
empiredom in Hungary (from Vas to Csongrád counties), as well as
from the capital (with intention of a preventing cleansing), and
from those settlements previously planned for socialist big-industry
development in central Hungary. The deep reason (never officially
stated) may have been either mistrust generated by war psychosis,
and/or the short-cut intention to confiscate their private and
business property, and/or just a local potential’s wish for retaliation
or personal revenge. Anyway, the underlying motivation could be
everywhere the intimidation of all the rest of any civic society
and—by devastating both wealthier village and middle-class town
layers, alongside with the one-time “ruling class”, sentenced to
annihilation—breaking up society to atomised beings, incapable of
any further self-organisation.7 And this had gone on day to day,
week by week, month by month, and year by year hopelessly,
sensed as eternity for most of them, until the death of STALIN, which
was followed by a Soviet succession which could eventually rock
the hegemony of his “best Hungarian disciple” MÁTYÁS RÁKOSI
(officially called “Pajtás RÁKOSI”, made adored as the pal of the
whole population), building Socialism with “ten million Fascists”
with fire and sword, just to yield the field, out of tactics for a short
time, to IMRE NAGY’s boneless rule, introducing concessions but,
nevertheless, disbanding the work camps eventually.
And the class struggle went on (ruthlessly, according to
the pattern of the Soviet-type Socialism, having begun with
Bolshevism half a century before), all through substantiating
(although with changing means and in changed forms) the
7 As GYÖRGYI BADI, once deportee as a child, raised the issue in personal talks summarising
her family experience, this crude interference might have been the final injury, causing total
disintegration of local society, wrecked up to the present day, of her home Southern
Transdanubian region called Ormánság.

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Communist rule in Hungary (the perpetrators and disciples of


which now proclaim to embody social democracy with just as much
irresponsibility, out of mere hunger for power and control, as they
used to introduce Soviet-type Socialism back at the time for the rest
of society).
After all such turns, finally nothing was left to these victims
but the chance of leaving the work camps physically (as not
accompanied by any registration, any documentation on the work
accomplished and any reckoning), but without the right to return in
most cases (due to police prohibition of residence in frontier zone,
in the capital and in industrial large towns). Forced to subsist on
some meagre temporary aid granted one single time, they could try,
with heroic efforts, to create again a livelihood from scratch, first
sheltered by relatives, condemned to job search and, if successful
at all (as all their official contacts remained shadowed by secret
police notification), to be compelled to do the worst paid and
roughest work, just to add lasting insult to their earlier injuries.
Of course, this applies only to those who could survive the
atrocities. Deaths accelerated by lack of medical care,
miscarriages arising from bodily or psychical strain, infant and
child mortality as well as suicide (especially amongst farmers used
to staunch inner autonomy) reduced the number of those returning.
And what’s about the lucky ones? They were happy to have stayed
alive at all for three and a half decades after leaving the camp,
stigmatised as class enemies, discriminated in studies,
employment, career, promotion, and awards. Sometimes they
became injured for a whole lifetime, mostly arising from forced
child labour. They were under duress to leave a blank in their
curricula vitae, making them accomplices to the crime done to
them. They had to resume officially acknowledged work without the
years in deportation taken into account in respect of employment,
supplies and pension. In fact, they were sentenced to silence,
intimidated not to speak about the atrocities against them up to the
last day of Socialism, as the authorities labelled the cruelty made
to them as mere accidence, to be strictly forgotten. At the same
time, once the victims wanted to acquire a job or admission to a
university, the addressee was always reached by a confidential

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notice, preventing them from being hired or admitted. And this had
lasted until Communism collapsed and the heroes of the
Communists’ new brave world started to build their renewed
regime (now called “political transition”) by privatising a vast
proportion of the national property and fortune, this time in a West-
conforming liberal guise.
Therefore, perhaps it is not improper to eventually raise the
issue: are we anything more than living physicality, sheer biology?
Is life anything more than wriggling of tired, humiliated bodies
racked with pain? Demiurgic capacity (or just infinite cynicism)
may reside in Communists if this time again exactly their sadistic
executors were charged with the task of clearing up their own
crimes (called incidental wrongful acts). All they did was keeping
silence and silencing those insulted. The deeds had no
consequences and those who had to suffer them were not offered
any compensation. The deportees were just disbanded at the time
with the repulsive warning to keep silent, and not even their
collective suffering did get a name.
And as it was by far not commendable to speak even amongst
relatives or friends, and the press and the public also kept
unbroken silence for long, their narratives soon became difficult
even to believe either in family circle or by friends, because such
narratives had no point of reference or confirmation by either
known segment of life. The atrocities became particularly hardly
graspable for the coming offsprings of those who survived the
injuries as kids, for nothing could support, contextualise or
encourage narration in a country covered by total amnesia. This
way, external suppression was heightened by a secondary, innerly
self-inflicted suppression, which made it even less easy for
guiltless sufferers and their families to process the abuses, to
manage a healthily survival in order to live an ordinary life with full
chances.

(“Deportation” with no Silence Broken Since) And ever


since? Has the nation, freed from the yoke of Communism,
expressed any compassion towards those anguished without
reason? Has our republic (so proud of its brand new scheme of an

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alleged rule of law, yet maintaining unbroken legal continuity with


the preceding unlawful dictatorship) made due apology to our
nearly ten thousand fellow citizens for having been deprived of
personal freedom for years, of life with equal chances for decades,
and of property accumulated by their prior generations’ honest
work forever? Well, in fact, not one single word has been uttered or
committed to paper by the authorities for almost twenty years now.
Nothing has been either called by name or commemorated. How
could their fate be appraised or simply accounted with if their
tragedy, their ill-fate caused by citizen fellows has not even had a
name? How could they be commemorated when no formal
investigation or gathering of facts has ever taken place? Although
we live now in a world abounding with civic organisations
providing legal defence, supported by the state and by
international resources as well as by social capital worldwide,
every atrocity that was once perpetrated against them has up to now
remained only alleged. It happened if we believe it happened. It
happened if we happen to give credence to their plaintive sighs that
can at times still be heard. Our rule-of-law-schemed cynicism built
on sheer formalisms has become an accomplice itself, because it
has in fact allowed, with culpable negligence, Communist amnesia
conceived in sin to survive in the successor society.
Of course, the victims are no longer deprived of common
rights, as they are now citizens under equal protection at least in a
formal sense. Those of them who in the lack of any administrative
registration at the time can nevertheless provide evidence of having
been transported to a forced labour camp to work there for three
years at least, fall under the legal category of those innocently
imprisoned, to receive a supplement in addition to their monthly
pension, equalling the paltry amount of the average money paid for
few days’ work today. As to their property confiscated, those who all
that notwithstanding could provide proofs of ownership (often with
efforts and sacrifices more costly than the actual compensation
value, being then deprived of all their personal belongings and
archives, so launching legal procedure rather out of reverence for
their predecessors) fall under the category of those whose fortune
was once nationalised and can fight for being entitled to so-called

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compensation notes that have proven to be, despite early hopes but
betrayed by governmental impotence, outrageously worthless. This
is all the compensation they may have got—and nothing more—for
their immeasurable sufferings.
In addition, considering the fact that our republic, having
become accessory to these crimes by keeping silent, did not even
name their victimisation, they themselves could not get factual
knowledge of each other either. Our arrogant, newfangled rule of
law scheme might as well even add to their inner uncertainty as
they cannot help but puzzle over whether or not they were a rash in
the adolescence of our Socialism proudly building its new,
Communist society or an inevitable splinter in the brave hard work
of wood-cutting, in demand of firmness first of all.
Namely, they were degraded as unnamed code number
holders of closed camps,8 and in the everyday painful experience of
being shut together and the involuntary acceptance of a community
inflicted upon them by their common slavery, could know about
each other as co-mates to given small communities at the most. So
it is by sheer accident that they could get at all some sporadic
pieces of information on other deportations, deportees and camps,
without any realisation of the deportation’s systemicity. And this
could only have a start, by happy chance, less than a decade ago.9
They, and not the authorities of the republic, began searching each
other, for companions in distress. That is, aggravating their and our
common shame in their renewedly dishonoured and hard lives,
8 In fact, only headcount official data were produced about them in confidential reports,
indicating the change caused by birth or death as “increment” or “diminution” respectively,
except when their eventual move without formal permission had been followed by the
ordinary police notice “wanted”, issued as if they were criminals.
9 Their search for each other has become encouraged (in want of anything else) by the hope
for and possibility of gaining evidence on what had happened, witnessing for one another
upon the basis of the growing mass of mutual narratives at the beginning of the past decade
in our shameless transition. As happened, it was sociologist ZSUZSA HANTÓ who managed to
discover a list of the camps (the first documented proof of systematic persecution on a
massive scale) in the spring of 2000 (despite the fact that the encryption of the data had
been cancelled earlier, in 1994 and 1995, true, also too late a time), as a—perhaps not
unexpected, but, so to say, inadvertent—result of three years of persistent research in the
Central Records of the Ministry of the Interior. In possession of it, survivores could already
organise a conference in the summer of the same year. As an institutional consequence, the
Association of the Deportees to Forced Labour Camps in Hortobágy [Hortobágyi
Kényszermunkatáborokba Elhurcoltak Egyesülete] was also founded.

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they were to start devoting time and money (from their meagre
pension) to be able to remember and also making us to remember.
And, from the collective remembrance, a genuine community
has been born by now. Organised on their own, in the bounds of
their private sphere and civility in a self-supporting way, to bring
about a true community, by recalling and sharing memories. A
community that may even have a name one day.
All they guess to be remembering includes also that the three
conservative prime ministers up to now after the fall of
Communism, who equally preached for Hungary’s Christian
traditions in sublime words, involves one having got stuck at the
Communist calumny at the time justifying their deportation as a
temporary policing solution to prostitution and also another one
without the faintest knowledge and/or credence of their past and
presence.
Has their treatment changed ever since? Fortunately, there
are publications, commemorative events and one or two
monuments. All subsidised from their donations and erected from
their contributions. All are mostly managed within their own
circles, inaugurated and unveiled by them, but by far not
exclusively for themselves. Intended by them but not just for them:
rather out of concern for the nation, to defend the Hungarian ocean
in themselves like in a drop, to prevent the moral foundation and
the very ideal of the republic itself from being undermined by the
sinful reticence and amnesia continued regardless of political
parties and of the constant verbal magic of a past surpassed, not
interfering with the present any longer.

(Considerations on How to Treat the Past after the


Communism has Fallen) But its seems obvious, even if browsing
only among my earlier personal writings, that we have not delayed
in recognising the necessities at the dawn of what we then hoped to
be the start of a genuine change of regimes. The painful lack of the
authorities’ action was formulated as early as the beginning of the
year 1990, in the first moments of the transition to parliamentary
governance. Notably, as I cried out then,

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“no exploration of facts and data has taken place in our


country yet. […] However, due to the defencelessness arising from
the isolation of private initiatives [appearing, in want of anything
better, in popular periodicals], the procedure itself appeared so
absurd that instead of the establishment of simple historical facts
or of determent or awareness of the shame, all this became fixed in
citizens’ consciousness (owing to the media allegedly unbiased) as
some suspicious manipulation (as it may have raised protest partly
rightly). […Because…] however great journalistic force, power of
revelation some works may have […], there may still remain some
nostalgic pro-communist organs insisting on Socialism being in
heir of the French Revolution, on STALINism as merely a desperate
experiment in modernisation, and on professional revolutionaries
as the heroes of social transition notwithstanding. Therefore, the
very act of unveiling by revealing the names gives itself no form
whatsoever. And a due form is necessary by all means.”10

But struggling with the issue of form, of the proper and


worthy forum and framework, points undoubtedly at the state as the
only actor that can, similarly to European “white books” or
American “state books”, mediate reliable records at turning points
of national history (e.g., after wars) about what happened in and to
the community. Accordingly,

“There must be a national forum that establishes, clearly and


with a force valid for the future too, what happened over the past
fifty years, and how it happened. There must be a national forum
that judges in an exemplary way at least for the most flagrant cases
of personal involvement and responsibility. Or, there must be fora
doing the job, and by far not necessarily with the aim of inflicting
damage on anyone in person, but in order to prevent the past from
passing unjudged. […] For the past is part of our present and

10 By the author, ‘On Setting Standards’ [intervention in the first symposion on the issue
on 12 January 1990] in his Jogállami átmenetünk Paradoxonok, dilemmák, feloldatlan
kérdések [Our transition to rule of law – Paradoxes, dilemmas, unresolved queries]
(Budapest: [AKAPrint] 1998), pp. 104–105 and 109 [A Pázmány Péter Katolikus Egyetem
Jog- és Államtudományi Karának könyvei 5].

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future. We are concerned with it exclusively in order for being able


to serve these latter also by it.”11

So, gathering information has immediately started in respect


of both our neighbourhood and other continents as well, to find out
how civilised nations are used to act when encountering the need
to rebuild themselves after a dramatic past, with a tragic heritage
behind it, is to be discontinued and closed down in some way
emphatically.12 And it became more and more obvious that what
was needed for drawing a caesura-like separation of us from such a
past was firstly nothing else then the establishment of facts with an
all-covering legal evaluation of the relevant events through a
judicial procedure, which might make this establishment both
indisputable and unquestionable by the seal of legal force; and the
undertakeable program of facing with the past in law was to be
inevitably complemented by a thoroughly reliable and full
documentation which could serve both as a historical record and as
psychical prophylactics for the victims.
Back at the time when our trust in the honest feasibility of a
justitia-programme was still unbroken and, aware of being right
when also morally responsible, all this seemed to us to be a
function of proper formulation justifiable for both sides, we
ascertained that the victims are not only entitled to (1) a
recognition by the National Assembly in representation of the
whole nation, to (2) a judicial procedure through which those once

11 By the author, Koncepció a múlttal szembenézés hatpárti egyeztetõ tárgyalásához


[Proposition to the six-party negotiations on coordinating how to face the past] [draft
proposal for the Board of the Hungarian Democratic Forum {MDF}] [manuscript, 9 May
1990].
12 In my own scope of action, I sent out dozens of letters, from October 1990 to April 1991,
to colleagues in legal philosophy worldwide, grappling with similar dilemmas. To mention
just one or two addressees, they included, e.g., from the Spanish resister (also victim of
imprisonment), now human rights professor in Madrid, GREGORIO PECES-BARBA, to professor
of legal philosophy in Buenos Aires, having become from an activist of the civil resistance
to a counsellor of the President of the Republic of Argentina, CARLOS NINO. And, in
September 1999 (while several of those Hungarian embassies which were supportive of our
government’s justitia-programme also collected pieces of local information as forwarded to
my office at the Advisory Board to the Prime Minister JÓZSEF ANTALL), I could report about
experiences gathered through my field studies in Lisbon and Warsaw (financed mostly from
scholarly research funds), besides other proposals.

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victimising deeds and perpetrators are qualifiedly named, and to


(3) a comprehensive documentation of the official clarification of
all those relevant facts, but also to that

“Closing the past […] could be the resultant of a


harmonised, concerted activity […, thus, in addition to the above,
…] (4/a) At the same time, the publication of a White Book which
would name by its coherent analysis those fifty to one hundred
persons bearing principal responsibility for events having led to the
present cul-de-sac, independently whether or not provable in a
criminal court (or prosecutable as a crime). [...] (Anyone finding it
prejudicial to be named would of course be entitled to institute
proceedings within the statutory frameworks […].) (4/b) At the
same time or perhaps subsequently, a regular periodical—e.g.,
under the title of 40 év [40 years]—should be launched as funded
from guaranteed state resources or sponsored by the parties in
parliament at a subsidised price, in as broad circulation as
possible, backed by a centre of documentation set up and
maintained from similar funds, to publicise recollections by
sufferers themselves and their witnesses, alongside with papers by
publicists and historians on the issue, as well as documents,
chronologies and lists of names (under serious control and
philological supervision by editors, without, however, being
necessarily censured). Documentation with by-products of and
materials preparatory to those activities mentioned above could
also appear here.”13

Despite the tendency of international human rights


movements at the turn of the 1980s and 1990s, suspecting
encroachment of individual rights in any attempt at exploring the

13 Formulated by the present author, A múlt lezárása Javaslatok a hatpárti tárgyalásokhoz


[Az MDF Választmányának címezve, az MDF Választmánya és az MDF Jogi Bizottsága
képviselõinek 1990. május 9-én tartott megbeszélése eredményét rögzítve] [Closing the
past: Concept for the six-party negotiations {addressed to the Elected Committee of the
Hungarian Democratic Forum (MDF), recording the proceedings of the meeting of the latter
with the representatives of the Legal Committee of MDF on 9 May 1990}] [manuscript] [the
first version above being drafted by László Ferenc Maróti {MDF Elected Committee}, the
second one by Csaba Varga {MDF Legal Committee}].

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past by governments replacing dictatorships, many times hindering


and at times even obstructing efforts (e.g., in Latin America), the
willingness to face with the past in law became, already back at the
time, a touchstone of the implied reason and sincerity, moreover,
moral foundation of the new scheme of the rule of law. So, it is no
mere chance that the admonition some years later was formulated
as follows:

“Should these ideals turn out to be unfit in helping us


transcend the past, our initial enthusiasm would inevitably cool off,
our constitutional ideals themselves would lose their moral
cohesion and appeal, and would inevitably dry out, as it were, with
our democratic pathos and perspective evaporating away.”14

(Cul-de-sac as Assessed even by Liberal Standards)


Meanwhile, the lofty warriors, stuck with principles, lost a battle on
this field too, as it turned out that the past afflictions left unsettled
by them had not only caused survivors additional and even more
unreasonable and unjustifiable suffering but had constituted
themselves insurmountable obstacles to the rebuilding of
democracy all over Latin America and Africa alike. And as they are
longing for marching in the forefront by showing the way to others,
the flag-bearers of so called liberalism changed their banner in the
meantime without making a sound, now—by the way, correctly—
declaiming about the political, moral and legal responsibility of the
successor government, which they are trying to elevate to the level
of an expressed duty under international law. Thus, their earlier
ideological demagogy has now faded away at least in the Atlantic
world. Perhaps their mottos fabricated out of Hungarian folksy
wisdoms—“Why bother the past? Why stir up nothing but conflicts
now?” and “Time will settle everything!” “Like pebbles in
Transylvania’s brooks, we shall be reconciled with each other little
by little”—are going to be substituted to more sober, responsive

14 From the present author, ‘Preface’ to Coming to Terms with the Past under the Rule of Law
The German and the Czech Models, ed. Csaba Varga (Budapest 1994) xxvii + 178 pp.
[Windsor Klub], p. viii.

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and responsible policies, more focussed on a long-term


perspective.
If we consider the set of criteria stipulated nine years ago by
some New-York-based office of the inscrutable, enigmatic, closed
centre of operations called, perhaps ironically, Open Society
Institute, known to us first of all from its partisan actions, the
following requirements can be found:

“a legacy of grave and systematic violations


generates obligations that the state owes to the
victims and to society. [...] [T]hey are in fact distinct
duties, each one of which must be complied with to
the best of the government’s abilities. [...Thus...] 1. to
investigate, prosecute, and punish the perpetrators—
a right of the victim to see justice done; 2. to disclose
to the victims, their families, and society all that can
be reliably established about those events—a right to
know the truth; 3. to offer the victims adequate
reparations—an entitlement to compensation and
also to nonmonetary forms of restitution; and 4. to
separate known perpetrators from law enforcement
bodies and other positions of authority—a right to
new, reorganized, and accountable institutions.”15

Looking at what can be ascertained out of them at the least is


that none of these four mutually complementary basic requirements
has been fulfilled in Hungary during the one and a half decades
labelled “change of regimes” but resulting in “a regime re-
instated” instead. What is even more, by now almost no disputes
perturb in our peacefully thriving and contentedly harmonic
society the abundance in success of a nation ruled by efficient
governments surrounded by accord, unless some narrations, sighs
and complaints from the peripheries about alleged injuries in the

15 Juan E. Méndez “Accountability for Past Abuses” Human Rights Quarterly 19 (1997),
pp. 255 & 261, combining here into one block both sides of obligations and rights
respectively.

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remotely long-gone past bring some disharmony to the surface,


causing unexpected disturbance…
Personal recollections made already available16 all testify to
the strong character of those dragged away to forced labour camps.
Driven to the limits of human endurance, physically broken and
deprived of worthy living conditions, however, those having
survived the afflictions can only find consolation in the awareness
of being moral victors of a lost match: they have become more than
what they used to be. Living under conditions that are more
comfortable today, it would be good to believe that one day we, too,
can perhaps achieve if not the same but similar moral standards
ourselves.

16 As a dramatic preliminary, see Kitaszítottak I: »Magukkal fogjuk megzsírozni a földet«


[The outcast I: »We will grease the soil with you«] ed. Zsuzsa Hantó, János Takács & Miklós
Füzes – II: Dokumentumok a hortobágyi zárt táborokról, 1950–1960 [Documents on closed
camps at Hortobágy, 1950–1960] ed. Miklós Füzes (Budapest: Alterra 22002 & 2002) 245
and 332 pp. – III: Családok munkatáborokban 1 [Families in labour camps] ed. Zsuzsa
Hantó (Budapest: Magyar Ház 2006) 504 pp.; Hortobágyi kényszermunkatáborok
1950–1953 [Forced labour camps at Hortobágy, 1950–1953] ed. Zsuzsa W. Balassa, Mária
Hajdú & Jolán Vecsernyés (Budapest: [Hortobágyi Kényszermunkatáborokba Elhurcoltak
Egyesülete {Association of the Deportees to Forced Labour Camps at Hortobágy}] [2004])
32 pp.; Telepessors [Settlers’ destiny] ed. József Saád (Budapest: Gondolat 2004) 368 pp.;
Badi Györgyi [née, Ottóné Bárány] »Élet« a Lenin-tanyán [»Life« on the Lenin-farm]
[manuscript] (Debrecen 2005) 95 pp. and also in Élned, halnod... Kényszermunkatáborokba
hurcolástól az 1956-os forradalomig [You must live and die… From being dragged to forced
labour camps up to the revolution of 1956] ed. Zsuzsa Körmendy & László Kozma
(Budapest: Kairosz 2006). It is this last title to which the present paper had originally been
prepared as a foreword, at the second editor’s request. My manuscrit was first met with
enthusiastic approval, then, when the volume was completed, rejected under various
political pretexts.

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1956 JUDGED BY ETHICS AND LAW


Or the Moral Unity of the Law’s
Responsiveness
as a Post-totalitarian Dilemma*
(Law and its Socio-ethical Basis) Law is part of our social
being; this very law and, behind it, the whole culture through what
we live every day, in mark of which we conceive the sense of our
being and shape our personal life, justify our paths and take our
decisions, are products and properties of a community that do
comprise all us in one single enormous unit. In our thinking about
worldly issues so much as in our collective identity, we do form one
absolutely inseparable entity—independently of whether we judge
ourselves in our reflected social being or in roles assigned to us by
the law, among others.
In law so much as in other conglomerates bearing value-
assessing mediatory functions (required for societal complexity to
differentiate its parts from the overall social complex), the
underlying basic ethos must be identical with that of the composing
parts in a symptomatic unity. Surely, our law is an expression of our
undivided societal culture as transformed into a specific
instrument; our legal language is formed on the basis of common
language, used in communication as especially shaped by
professional elites; shortly: all what we find in law, from the ways
of how to filter social relations, via fixing desiderata (targets and
priorities), to implementing them through the instrumental net of

* Originally—in its second, policy part—presented on the occasion of the 50th anniversary
of the Revolution and Fight for Freedom of 1956 at the conference on “The Blood of the
Hungarians” organised by the Faculty of Law of the Pázmány Péter Catholic University on
16 October 2006, as well as—in its first, theoretical part—at the scientific workshop
organised by the Institute for Legal Studies of the Hungarian Academy of Sciences on “Legal
Question-marks Concerning 1956” on 3 November 2006, the Day of Hungarian Scholarship,
and published the first time as ‘1956 erkölcsi és jogi megítélése, avagy a jog válaszadási
képességének erkölcsi egysége mint a totalitarizmusok utáni korszak dilemmája’ in PoLíSz
(December 2006–January 2007), No. 100, [Our external world – our internal world], pp.
163–174 & <http://www.krater.hu/krater.php.do=3&action=a&pp=1726> as well as in
Iustum Aequum Salutare III (2007) 1, pp. 31–44.

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their (technical, conceptual, institutional, as well as system-bound)


realisation—either borrowed from earlier or other laws, or
crystallised out from communal culture for legal use—derive
from this commonality and return also there; moreover,
even the law’s daily professional maintenance and operation
(reproduction and operational manipulation) are achieved on the
basis of such a commonality and feed back within it. Or, law rises
over the undivided fundament of our social community in a way not
detached from it even for a moment.
To be sure, with this recognition we have only returned to the
re-drafting of a well known and basically sociological
consideration. Namely, as soon as society gets internally
differentiated, here and now these differentiations will not be
effectuated in man him/herself but (even simultaneously) among
his/her roles. Namely, concerning the possible hits of
differentiation, its objectified forms and institutionalised presence,
any separation or independence becoming autonomous will be kept
within—while achieved through—specifically own but humanly
filled ways and means, because “a human is hidden in the
machinery”.1 Or, behind all such movements human beings stay,
indelibly and with peerlessly individual personalities, as a social
product of our undividedly common societal existence. It is not
him/her we think about or fear for his/her becoming aware of a
split; for diverting institutional expectations will not tear apart
his/her individual ego. Just to the opposite. It is his/her different
roles that different institutionalised expectations will be related
and referred to (internationalised and externalised at the same time
to various extents); and these are the roles he/she may want to
perform exactly without him/herself pulling apart, that is, in his/her
integrated social and human constitution simultaneously, through
his/her role-assuming personality as a human and societal being.
The above mentioned connections are practically commonly
shared phrases of those social ontologies and macro-sociologies
which are governing our age. Due to HEGELian traditions
(abundantly quoted by MARX), we may speak about schemes of

1 At one of my research courses a few years ago, a student of mine used this nice expression.

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homogenisation building up on the heterogeneity of daily life in


endless processes (simultaneously with institutionalisation and,
within it, objectification); in terms of the LUKÁCSian ontology of
social being, we refer to partial complexes having been
developed inside the given social total complex, furthermore, to
mediation through and inside each of these, as well as to a
definitive mediating role played primordially by language and law,
as forms of the specifically societal existence and as kinds of
exteriorisation emerging inside this; and, at last but not least,
starting from the background idea of LUHMANN, we may observe the
growing separation through the never-ending process of
Ausdifferenzierung , as a result of which processes themselves
are getting separated from one another as growingly independent
entities, while they do erect also their own institutional frames with
adequate means for that their own specificity can prevail relatively
freely. The keyword of all such movements is independence, on
the one hand, with its relativity, on the other, namely, to become
autonomous so much powerfully that eventually the object may
even turn against the substance forming its own fundament for that,
in this specification, it can realise what it received (similarly to
other ausdifferenzierend conglomerates of such “homogenised”
“partial complexes”) as motivation and also as culture of
motivation, within the totality of the overall “heterogeneity” of the
“total complex”.2
Using a symbolic expression, it is just what we could have
already learned about the a u t o p o i e t i c operation, defining
autotelic processions within systems at the same time open and
closed, first, in example of the reproduction of living cells, later,
within life sciences in general, ending as somewhat universalised
in and for social sciences as well. Accordingly, as to law, it is open
in any direction towards information from the external world, as a
system collecting data drawn from the heterogeneity of daily life;

2 See, by Georg Lukács, Die Eigenart des Ästhetischen (Berlin & Weimar: Aufbau-Verlag 1981)
and Zur Ontologie des gesellschaftlichen Seins in his Werke 13–14, ed. Frank Benseler
(Darmstadt: Luchterhand 1984–1986), as well as, by the present author, The Place of Law in
Lukács’ World Concept (Budapest: Akadémiai Kiadó 1965), particularly ch. 5, pp. 101–156, on
the one hand, and Niklas Luhmann Ausdifferenzierung des Rechts Beiträge zur Rechtssoziologie
und Rechtstheorie (Frankfurt am Main: Suhrkamp 1981) 496 pp., on the other.

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however, as to their processing by and within the law


(homogenising heterogeneity by treating it from a narrowly legal
aspect exclusively), this is already closed (since operating as a
“black box”—LUHMANN writes—it can only answer in exclusive
terms of a bivalent logic, qualifying the case to be either “legal” or
“illegal”). Notably and on the one hand, the law’s processing
ability is unlimited, while and on the other, this very processing is
both channelled into given paths and its alternative possibilities
are also definitely limited. Consequently, we have to acknowledge
now—as we have already had, by having realised the fact of social
complexity and of structuralisation through Ausdifferenzierung
within it—that our own social product may limit us in total
movement; moreover, it may even prove to be counter running,
since to the challenges—whatever they may be—the law will in
principle always answer in its own way.3
Well, I wanted thereby only to support the allegation
according to which we could have rightly got accustomed to treat
all the parts (thus: society, culture, economy, politics, law, science,
and so on) erected by our civilisational endeavours in this social
totality as independently active components, however and at the
same time, we can only interpret any and all of them within the
frame of a relative and instrumental, i.e., institutional, autonomy.
First of all—as we could see—“a human is hidden in the
machinery” undividedly, who, in his/her own personality, will be
role-assuming and role-playing simultaneously. However, such
autonomies are merely instrumental and institutional ones, the
basis of their existence being provided by everyday life. If the
lawyer uses language, recourses to techniques, calls for an
institution, construes an event established as a fact, or makes real
persons to move, he refers to language, technique, institution, or
human happenings and expectations which, within the womb of the

3 See, by the author, ‘Judicial Reproduction of the Law in an Autopoietical System?’ in


Technischer Imperativ und Legitimationskrise des Rechts ed. Werner Krawietz, Antonio A.
Martino & Kenneth I. Winston (Berlin: Duncker & Humblot 1991), pp. 305–313
[Rechtstheorie, Beiheft 11] & Acta Juridica Academiae Scientiarum Hungaricae XXXII
(1990) 1–2, pp. 144–151, on the one hand, and Theory of the Judicial Process The
Establishment of Facts (Budapest: Akadémiai Kiadó 1995) vii + 249 pp., particularly ch.
5, pp. 147–164, on the other.

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law, are specifically filtered and thoroughly institutionalised to


appear in a particular role assigned thereto by the
law ; simultaneously with the fact that all this is to take place in our
daily life as the actualisation of the potential to be found in our
common language, social techniques and institutions, common
happenings and expectations which—all their ausdifferenziert
aspects, meta-level meaning and significance notwithstanding—
actualise s o m e t h i n g f r o m t h e i r c o m m o n p r o p e r t i e s .
Indeed, by being stressed in law they gain some surplus, albeit
never in se and per se (in themselves or by their own power, that is,
through their sheer facticity) but in a frame artificially
conventionalised and made to be accepted by all us as common
knowledge, because it is us who have erected a specific network of
references upon them in order to be able to re-assess their
materialisation from the point of view of the set of available (moral,
legal, political, or some other professional) references. To give only
one example: the so-called legal language (or, to be more exact: the
one of positive law, of the official practice in the name of law, of the
doctrine systematically restablishing the law, and finally, of legal
scholarship) is not to get understood and shaped directly and
exclusively in function of some mere “law” but as one of the
ausdifferenzierend variations to our common language, that is, as
one instance or species of the feasible applications and
actualisations out of its rich potential.
We may survey the connection between the overall totality
and its parts also in relationship between goals and means as
well as in an ontological perspective, too.
Concerning the former, if and in so far as I do accept a world
concept on either a theological or a rational basis, then a series of
goals and means can be built on each other within which the values
themselves justifying the means are hierarchised to a certain
extent, between the absolute and the relative. My actions in law or
for law (i.e., de lege lata or de lege ferenda, that is, within the
prevailing law or for the law to be made) are neither optionally
accidental nor freely replaceable, for practical considerations do
motivate it pragmatically (even if they are not necessarily broken
down in logic or organised into a closed axiomatic system) that

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there are basic fundamental values (to which further and in


themselves valuable targets and preferences can be ordained), on
the one hand, and varying sets of instrumental values, on the
other, which are to be implemented in view (and for the sake) of the
totality of law and the partial areas regulated by it. Taking into
consideration either the message of theology and the so called
social teaching by the Church or the tenets of humanistic
philosophies, it is evident that even those great call-words
considered today as undisputedly timelessly universal (deprived of
their once particular and concrete historical and cultural
embeddings) as well as those ideals suitable for launching
historical mass movements—like ‘democracy’, ‘multi-party
system’, ‘parliamentarism’, ‘constitutionalism’, ‘human rights’ (on
the level of state organisation and politico-constitutional
arrangement), or ‘legal security’, ‘equality before the law’ and
similar ideas (heading the law)—are far from embodying
values in and by themselves. Indeed, they may become
value-bearer only provided that certain added conditions are also
realised; and a huge part of values recognised and supported by
law are simply brought in from the outside world through adequate
adaptation and adjustment, i.e., transformation.4 Or, taking
seriously the lesson of the Catechesis and of classic humanism,
earlier Communist annihilation of the law should not be
simply replaced by some blind following or express fetishisation
of law as the other extreme. Instead, some genuine value-
assessing cultivation of scholarship with adequate education and
socialisation in the background should have a start, as neither law
as such, nor constitution itself (captive also of incidentalities), nor
its casual-legal unfolding into elitist “invisible constitution” or
legal dogmatics is in the position, even in case of supposed ideal
perfection, to transcend the circle of instrumental values.

4 Cf., by the author, ‘Buts et moyens en droit’ in Giovanni Paolo II Le vie della giustizia:
Itinerari per il terzo millennio (Omaggio dei giuristi a Sua Santità nel XXV anno di
pontificato) a cura di Aldo Loiodice & Massimo Vari (Roma: Bardi Editore & Libreria
Editrice Vaticana 2003), pp. 71–75 & ‘Goals and Means in Law, Or Janus-faced Abstract
Rights’ in Jurisprudencija [Vilnius: Mykolo Romerio Universitetas] (2005) 68(60):
Terorizmas ir žmogaus teises, pp. 5–10 & <http://www.mruni.lt/padaliniai/leidyba/
jurisprudencija/juris60.pdf>.

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Concerning the ontological perspective, the societal totality


and the commonness of all the constructs developed within it are to
limit law by excluding contingency (albeit not variability) to some
extent. Since what we have stated above on the autonomy of
certain parts exerting influence up to the point when they are to run
against the social totality’s overall movement is still true, on the
one hand, while we have had to conclude as to its decisive
qualifying feature that all this is only relative, on the other. Well,
one of the most important ascertainments of all social ontologies—
as a reason of why we make differentiation between heterogeneity
and homogeneity, or total complex and partial complexes, or kinds
of processes within Ausdifferenzierung—is that at least
tendentially, i.e., in their fundamental directions, some unity
has to be reached amongst them.5 No need to say that what I
mean here is an ontological establishment of facts, without any
normative wish or preference addressed to others. Or, the demand
for the functional optimalisation with effective role-assuming leads
necessarily to internal differentiation within so called grand
systems, based on developing such distinctively particular features
that presuppose a relatively independent operation which, as
compared to similarly autonomous functioning of other parts or to
the overall movement of the system itself, can manifest itself in the
chance of eventual discrepancy, deviance, or counter-action as
well. Nevertheless, all this can be produced in terms, interests, and
upon the basis, of some final unity in support of the total
movement, since in any other case the self-development of the
system could only result in self-neutralisation and
disorganisation—ending in self-destruction—what, in case of the
want of self-disciplining or pressurised moderation, will
necessarily be the case sooner or later, if suitable corrective
mechanisms are not built in the system in due time, with the
required optimalisation effect.6

5 See Lukács Zur Ontologie… [note 2] III, pp. 296, resp. Varga The Place of Law… [note
2], at the same place.
6 A biological comparison is perhaps needless, yet it is well known that the most destructive
organic anomalies and sources of danger to our survival do result from our organisation’s
casual limitation in its ability to self-regulation. From such a point of view the

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The question may only be answered retrospectively and in a


system-specific way by subsequent description of the result of
concrete analytical exploration, whether on the respective field of
economy, politics, law, science, morality (etc.) (1) what kind of
autonomy, (2) what profundity of tension and (3) what type and
depth of deviation may be produced by own operation with the
overall effect that the underlying system can not any longer simply
tolerate but also accept it as stirring in overall functionality; or, in
a reverse formulation, when it already ends by becoming
destructive in its totality. For it is to be taken as granted that there
is a limitation somewhere in each and every case (although
theoretically disputable), beyond which what will already be at
stake is not any longer an instrumental self- development
or role -playing but the case of one of the parts overcoming the
rest by (de)forming the overall totality.

(The Necessity of an Ethical Minimum in Law) Reformulating


these considerations in terms of the relationship between morality
and law, we can already draw some general conclusions therefrom.
Accordingly, we may state that law is rooted in society as one
of the main performers of the given society’s moral expectations.
Or, the other way round, this is also to mean that the law’s
proper instrumental values are exclusively of a mediatory nature:
they may channel and refine legal processes but they are not to
serve for deforming the law’s basic function or making its
fulfilment impossible.
Since only provided they could do this, it would be exactly as
if humans could be diverted from their natural rationality. And in
this case, what would all it be worth?
Concerning law, we know that it is abstract and formal, as it
is matched to all its addressees in principle; however, it is to
remain effective until its sanctions shall actually be meted out to a

cancer as an endemic of our age is just the outcome of the overgrowth of the organism, i.e.,
of cell-reproduction having become unrestricted so as to even destroy organic identity,
ending by the termination of its underlying final tendential unity, destructing the whole
system in question eventually. Cf., by the author, Lectures on the Paradigms of Legal
Thinking (Budapest: Akadémiai Kiadó 1999) vii + 279 pp., especially at para. 5.1.

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fragment of its addressees.7 Otherwise speaking, it will necessarily


collapse once it runs counter an entire society or a massive practice
not manageable any longer by law.
At the same time, we also know that until law is not yet
actualised, there may be ones managing to withdraw themselves
out of its timely control. This fact, however—and this is the
essential point here—does by far not affect the validity of the law’s
principal operation, since at any time it may be referred to them,
and then, obviously, the law’s sanctioning might be enforced in
their case, too.
Nevertheless, law can not—simply must not—tolerate that
entire groups or nets of important relationships in and concerns for
society with vital events significant for the whole nation prove
simply untouchable by—as irrelevant for—it. (And what is
actually meant here is the overall result, that is, the responding
potential of the law in operation, not the depth of regulation it
offers. For it is not true simply to state that law either addresses you
or keeps silence. Because in fact it addresses you even in case
when it keeps silent. Accordingly, insofar as it declares its
irrelevance and thereby a total lack of own specific message, then
it is just indifference that it enunciates.)
For if that occurred, then law would cut off itself from its vital
roots and essential embeddings in the daily life of society,
suspending its patterning power in conflicts threatening societal
integration and, thereby, also its ability to guarantee overall order.8
In such a case it would degenerate into mere coercion, an
arbitrarily imposed external measure that does not arise from
society through internal tensions and conflicts resolved but from
what is coming from outside as an act of by chance coercive
intrusion..

7 Cf., by György Lukács, A társadalmi lét ontológiájáról III: Prolegomena (Budapest:


Magvetõ 1976), p. 18 & Prinzipienfragen einer heute möglich gewordenen Ontologie [the last
MS typed with autograph corrections in the Georg Lukács Archives of the Institute for
Philosophical Research of the Hungarian Academy of Sciences in Budapest] LAK M/153, p.
17, resp. Varga The Place of Law… [note 2], para. 5.2.1 at p. 114: „erst einer relativ kleinen
Minorität gegenüber muß und kann der Rechtszwang effektiv wirkungsvoll werden.”
8 The recognition concluded partly from cultural anthropological and partly from legal
ontological analysis—cf., by the author, ‘Anthropological Jurisprudence? Leopold Pospíšil

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And if this yet happens, because law (in action, or beyond its
inability for practical manifestation, perhaps still also in books) is
like this, then it indisputably proves to be bad law. Its value,
measure and instrument will certainly be false, for a false result
like this will exclude defensibility from the very start.
Concludingly, if this nevertheless occurs, then it is greater a
problem than any damage to or violation on society. Because law
may answer this latter, and society may recover from it. However,
the former one can deform even society. For if and insofar as such
a false law can be built upon society, depriving society from its
most natural ability to think in terms of—while providing for—its
effective protection, making it believe that moral justice with
means of effective defence may not perhaps get any place in law;
that is, if such false law may lead to a widely shared feeling of self-
abandonment, by sensing that law is neither strong enough nor
equipped with means to effectively oppose violation, falsity, self-
centredness within socially dangerous dimensions which, if
untreatable, may even push society into disorganisation—well,
then the rest of the moral sense of society with readiness to healthy
reconstruction may also be lost, in a way suitable to cause in a
longer period both retro gradation and loss of forces, decline and
eventual decomposition as well.

(The Drama of 1956, Unique and Superb) Well, what is the


matter about the problem indicated by this paper’s very title:
“1956 Judged by Ethics and Law”?

and the Comparative Study of Legal Development’ in his Law and Philosophy Selected
Papers in Legal Theory (Budapest: ELTE “Comparative Legal Cultures” Project 1994), pp.
451–452 [Philosophiae Iuris] and Lectures... [note 6], p. 204, note 1—, according to which
“(1) Law is a global phenomenon embracing society as a whole […]. (2) Law is a
phenomenon able to settle conflicts of interests which emerge in social practice as
fundamental […]. (3) Law is a phenomenon prevailing as the supreme controlling factor in
society.”, is itself to circumscribe law not only exteriorly as a definition but also the law’s
hic et nunc relativity (to be seen as a phenomenon only retrospectively describable); which
is to signal the law’s demand for totality as well (that can be assessed in the perspective of
its concrete presence at any given time exclusively), as an absolute sine qua non
precondition for that its very underlying notion may have a case.

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Some years or decades here and there passed: these are


obviously microseconds in world history, yet with moments rather
dense, they can turn to be decisive for a whole nation’s destiny.
And the events of 1956 proved to be like that.
At that time I was a secondary school boy at Pécs. My father
had by then for long been expropriated from the factory—a factory
that my grand-father had once founded for coach-producing, which
then had planted the first fuel station in the province of Hungary,
which my father had in the meantime transformed into a body
manufacture (of automobiles, trucks and buses) known all over
Transdanubia, with also selling, supplying for and servicing
especially DKW and BMW cars—and, of course, also expelled
from our living-house; for in terms of so called nationalisation (a
predatory and in our case also illegal industry destruction, in fact
by far not beneficial in any sense for the country), we as a family
were also forcedly moved to a miner colony at the townside. Well,
by the morning of 24 October, we looked, as regularly, for the news
by the Radio Free Europe in Munich again (since against the
artificial—defensive—waiver disturbance, it was strictly counter-
advised to leave the radio programme finder button rightly adjusted
to the wave, as an abrupt police visit or search of premises any time
might have qualified its very fact as a corpus delicti, and the
categorisation of the official biographies accompanying us as
children as well with the sign “X”—standing for “class-alien; past
exploiter”—might have immediately aggravated our case for
becoming “class-enemy” as the former’s “active” form, with direct
conclusion of official revenge), then, due to the consternation by
news from abroad, we listened to the short statement of—as threat
by—the Hungarian broadcast, which advanced the power of revolt
in the capital that I had at once understood in all its dimensions
and self-multiplying effects. And then, having become conscious of
the fact that from then on all of us happened to be participants of a
momentous event, with the prospect of either a miracle or an even
more terrible downfall in the background, I got out of a drawer,
where we reserved some still empty hard covered registration books
of the old factory, with sealed and numbered pages, one of the most
luxurious of them, in order to fix the day divided into minutes by

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recording the broadcasts word for word at the time except when I
went to the town to observe the events and collect both leaflets and
newspapers.9
Since the war, called as the Second Great one, until then
having exacted the greatest bloody sacrifices, put an end only to
two species of dictatorship. Because, as known, the red version, at
the top of human devastation, had become winner of that conflict to
such an extent that due to its territorial conquests and development
of a potential suitable to massacre at the very size of continents, it
could become, simultaneously and in a strange way, in the so called

9 By the middle of November, the enormous book was filled up and, from printed materials,
I got a rich collection. Soon I could complete it with a number of amateur photos of the
metropolitan silent demonstration against the reprisal by the pufajkás [Russian word for
those uniformed in short warm quitted jacket]. My interest was such irresistible that finally
I stolen a number of documents (issues of the émigré journals Nemzetõr and Új Látóhatár,
in company of Western leaflets) exhibited under the title of “Counter-revolution in Hungary”
in the once Korzó Coffee House’s two stories (then Palace of the Trade Unions, besides the
theatre of Pécs) as deterrence of the “imperialistic subversion”, in an evening moment, when
the guards were already tired, by moving the closing glass—although feared for but having
passed undetected, thank for God. These remained my carefully kept treasures for years. Of
course, I avoided speaking about them to anyone for security reasons until in the Spring (6
February) of 1961, the day of en masse arrests one night, revenging throughout the country
some hundreds of priests and former fathers brought in connection with the clandestine
youth movement Regnum Marianum, within which, referring to it as an illegal “organisation
for the subversion of the state and societal order of the people’s democracy”, I got involved
too in the series of state security police interrogations and investigations, mostly in the
premises of the Faculty of Law at the University of Pécs, in room of the unit’s party secretary.
After some tormenting nights with apocalyptic visions instead of sleep, whilst digging into
the ground for hiding these documents again and again, amongst awful considerations, I
burnt all them and even dissolved the ash at the Mecsek hill. For the background of the
“movement”, cf. Zsongor László Aczél Parázs a hamu alatt Dokumentumok és
visszaemlékezések a pécsi cserkészek katakombaéletébõl, (1947)–1951–1965… (Brand
under ash: Documents and memories from the scouts’ catacomb life at Pécs (Budapest: Új
Ember & Márton Áron Kiadó 2005) 339 pp.; as to my involvement in the events, the
inverview with Ferenc Bárdfalvy in László Bükkösdi ‘Az egyház nem rehabilitál’ [The
Church is not to rehabilitate] [originally: A Helyzet (September 15, 1989)] in his Szeressétek
a macskát! Egy öregember emlékiratai [Love the cat! Memoirs of an old man] (Pécs: Pro
Pannonia 2003), pp. 99–107 [Pannonia], further, as particularly affected in person, Ilona
Jillek ‘A világot nem tudom elképzelni Isten nélkül’ (I can not imagine the world without
God) Új Ember LVIII (February 24, 2002) 8 [No. 2795] & <http://ujember.katolikus.hu
/Archivum/2002.02.24/0602.html>. For a complete record referring to my participation as
well, see Mátyás Ivasivka & László Arató Sziklatábor A katakombacserkészet története:
Visszaemlékezések és dokumentumok, (1945–)1948–1988 [Rock camp: History of
catacomb scouting; Remembrance and documents] (Budapest: Új Ember & Márton Áron
Kiadó 2006), particularly at pp. 125, 126, 414 and 492.

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Cold War, both counter-party of and partner to the victorious


Western powers. Hungary shared in the cynically meted out fate of
a Central Europe of hundreds of millions—assisted by Communists
in rivalry amongst them in both neophytism and the hate of
anything domestic drawn from respective national pasts—in
getting transformed into a defenceless colony of a barbarian Asian
power, not simply differently but also truly under-civilised.
What the red dictatorship had actually done within its mighty
competence it could do it in complete undisturbance, as the
Western powers tolerated it in a most opportunist way. Thus they
could easily ignore, for instance, the workers’ rebellion at East-
Berlin in 1953. And the intimidation, rétorsion, indoctrination,
submission to common rituals were indeed of a totalising effect
with the exclusion of any retreat into privacy, but destroying
(through penetrating into) the smallest mouse-holes of withdrawal
or hiding, reminding of the total defencelessness of Doctor
Zhivago,10 when anyone is pushed to become next to accomplice as
wedged into barbarous dilemmas—contrary to the well-
circumscribed spheres of relative privacy left even by brown
dictatorships.11 And nevertheless at home, in “church and school”
(as remembered by a great poet),12 in associations made by artistic
expressions as well as within well-coded scientific or historical
textures, I could meet compressed lips as a child too. Because to
speak out, exchanging opinions or calling something/someone by
deserved name might prove to be life-threatening but, happily and

10 Boris Pasternak Доктор Живаго (Milan: Feltrinelli 1957).


11 As even from perhaps the earliest self-description of the Third Reich—Ernst von
Fraenkel The Dual State A Contribution to the Theory of Dictatorship, trans. E. A. Shils (New
York & London: Oxford University Press 1941) xvi + 248 pp., resp. Der Doppelstaat
(Frankfurt am Main: Europe Verlag-Anstalt 1974) 257 pp. [Studien der
Gesellschaftstheorie]—we can learn that the Nazi regime had developed a Janus-faced
policy: quasi-Rechtsstaatlichkeit for “us“ and legally precisely implemented revengeful
machinery for “them”, namely (according to the categorisation of CARL SCHMITT), the enemy
[Feind], distinguished from the friend [Freund]. Thus the dismissed Mayor of Cologne,
KONRAD ADENAUER, could retire to its estate to run it, or the legal philosopher expulsed from
the Heidelberg University, GUSTAV RADBRUCH, could in solitude carry on research on
criminal law doctrinal history even during the greatest war-losses—only provided they were
not any longer visible in public sight.
12 Sándor Reményik ‘Templom és iskola’ in his Összes versei [Complete Poems] II (Budapest:
Révai 1941), p. 334 & <http://www.geocities.com/erdelyilobby/htm/remenyik.htm#nehagyd>.

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rapturously, to agree through signs was already easier. We knew


whom we should honour and why, although we did not name them
except for rare and intimate occasions.
Amongst our miner neighbourhood and in addition to us,
mostly those warrant-officers were newly settled who had arrived
from rural ignorance after being quickly retrained for the people’s
army within the imagery of minister MIHÁLY FARKAS, to assist the
Soviets when they would overrun TITO’s Yugoslavia. Dark, small-
minded men, with corpulent women and many healthy children,
with whom I played soldiers at the townside (sometimes equipped
with weapons loaded with ball as borrowed from their fathers), at a
time when I was dreaming about a heroic life (inspired by youth
novels with irresistingly timely messages, written mostly by Jesuit
fathers between the two wars), ready to intelligent self-sacrificing
in order to fight down this barbarism—as final secret target for a
whole life.
Regarding all these, all today’s assumed historiography
which, reading words out of texts produced by momentary
revolutionary initiatives and moves of this short period of time,
tries reconstruing whys and prognoses with programs and party-
preferences worth of academic debating now, seems to be quite
frivolous and also rather boring. For in these movements nurtured
by layers and generations with varying historical experiences in
society I have always deemed to hear out the unison of the flat
rejection of “Them”—or Oни, as the Poles expressed it with an
ostracising overtone in Russian13—, the barbarian invaders and
their local henchmen, who had so proudly distinguished
themselves from the rest of a submitted nation.
And there, in our direct neighbourhood, two children of a
coal-miner family (one trainee boy and one truck-pushing boy)
were the first who, by Soviet shot from behind the neck, with hands
tied up with wire as twisted in the back, in Schichta14 dresses (i.e.,
when returning to home from work, just having directly joined the
armed resistants of the “invisibles at the mountain Mecsek”), at a
13 E.g. Teresa Toranska Oni Stalin’s Polish Puppets, trans. Agnieszka Kolakowska (London:
Collins Harwill 1987) 384 pp.
14 Schicht in Hungarian miners’ language, derived from German for ‘shift’, standing for a
day’s work.

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November night, with a few further companions murdered, were


just unloaded from lorries by agents of the ÁVH [State Defence
Authority] in front of the Forensic Institute of the University of
Pécs. These young men, genuinely proletarians, educated by the
regime to become its supposed favourites as uncorrupted
representatives of the Hungarian Youth, became heroes; while I
could bitterly cry at most.
And the events of 1956 rocked the world: the idea of
Communism was displaced from the altar of idealism built by self-
resignation of self-realising saloon-Communists in the Western
world; the undertaking of Communist feeling was deservedly filled
with guilty-conscience; the Soviets’ dependence on sheer might
and expediency was to change over with rational calculation within
some Realpolitik; and, in last but not the least, the revolutionary
fight for liberty in 1956 made light shimmering in darkness of the
tunnel of barbarism to be seen or at least wished also by those half-
blind (i.e., the societal average adjusting itself downwards,
including those who could be bought cheaply or who wanted to be
just comfortable or were simply indifferent).

(Posterity Shame for the Law getting Silenced) Due to the


European traditions of several thousand of years of the doctrine
justifying tyrannicide15 and to its doctrinal and casuistic natural

15 Cf., e.g., Simeon Baxter Tyrannicide Proved Lawful From the Practice and Writing of Jews,
Heathens, and Christians; A Discourse delivered in the mines at Symsbury, in the colony of
Connecticut to the Loyalists confined there by order of the Congress; On September 19,
1781 ([London]: Printed in America: reprinted for S. Bladon 1782) 31 pp.; De la doctrine
du tyrannicide (Paris: chez Mlle Carié de la Charie 1828) 129 pp.; Walter Savage Landor
Tyrannicide [Published for the benefit of the Hungarians in America] (Bath: Meyler and son,
printers [1851]) [3 pp.]; Mykhailo Petrovych Drahomaniv Le tyrannicide en Russie et l’action
de l’Europe occidentale (Genève: Rabotnik et de la Hromada 1881) 16 pp.; Miksa Mór
[Kárpáthy-]Kravjánszky Tanulmányok a zsarnokölés tanának történetéhez (Studies to the
history of tyrannicide) (Nagyvárad {now: Oradea in Romania}: [Szent László Rt.] 1914) 155
pp.; Alfred Coville Jean Petit La question du tyrannicide au commencement du XVe siècle
(Paris: A. Picard 1932) xi + 613 pp.; Léon Mirot L’assassinat de Louis duc d’ Orléans et la
théorie du tyrannicide au XVe siècle (Paris: A. Picard 1933) 14 pp.; Oszkár Jászi & John D.
Lewis Against the Tyrant The Tradition and Theory of Tyrannicide (Glencoe,

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law version forged especially by the Spanish Jesuits,16 I do not feel


particular need to give reason why all what in 1956 had happened
was legitimate also in a moral sense. I do not feel specific need to
give reason either why even those limited atrocities were hardly
avoidable in the given situation indeed, the occurrence of which
(independently of their real burden) many (including myself) have
thought to be tragic. As known, those taking part in the events and
subsequently stricken dead by the pufajkás17 or by ÁVH agents
(perhaps just because the latter’s shame had become thoroughly
cognised by the former) or summarily executed, had endeavoured
with all their might to forestall such atrocities (as all they fully
understood how much brutal antecedents might have motivated
similar reactions in mass activities individually and mob
psychologically irresistibly), since however the thought of any
lynch-law or popular verdict deviates truly from our moral sense, as
responsible Hungarian I feel still rather pride that totally and in
parts—whatever the official historiography of Socialism had
wanted us to believe in re of the Revolution and Fight for Freedom
in 1956 (as it pursued mere verification of own political

Ill.: The Free Press 1957) ix + 288 pp.; Roland Mousnier The Assassination of Henry IV The
Tyrannicide Problem and the Consolidation of the French Absolute Monarchy in the Early
Seventeenth Century, trans. Joan Spencer (London: Faber and Faber 1973) 428 pp.; Olivier
Lutaud Des révolutions d’Angleterre à la Revolution française Le tyrannicide & Killing no
murder: Cromwell, Athalie, Bonaparte (La Haye: Martinus Nijhoff 1973) xvi + 463 pp.
[Archives internationales d’histoire des idées 56]; Stephanie Jed Tyrannicidae Imago
Lorenzino de’Medici and the Imprint of Human Action [microform dissertation]
(Connecticut: Yale University Department of Italian Language and Literature 1982);
Franklin L[ewis] Ford Political Murder From Tyrannicide to Terrorism (Cambridge, Mass.
Harvard University Press 1985) xii + 440 pp.; Anna Lisa Merklin Lewis Tyrannicide Heresy
or Duty? The Debates at the Council of Constance (Dumbarton Oaks 1990) vi + 223 pp.;
Lu Zhu sha bao jun Diquan li Bao jun fang fa li lun xin tan [The right of tyrannicide] (Chu
ban / Taibei Shi: Shi ying chu ban she: zong jing xiao San min shu ju, Min guo 79 [1990])
10 + 250 pp.; Mario Turchetti Tyrannie et tyrannicide de l’Antiquité à nos jours (Paris:
Presses Universitaires de France 2001) 1044 pp. [Fondements de la politique: Essais].
16 Here it is usual to refer first of all to the doctrine of FRANCISCO DE VITORIA (1480–1546)
and—in parts—to JUAN MARIANA De rege et regis institutionae (1599), banned by the Jesuits
when following the Jesuit assassination of HENRY IV (1610), the author was also sued.
Interpretation in modern times draws mainly from JOHN OF SALISBURY Policraticus (1159)
(III, 15). Popularisation is mostly due to positive summaries by JEAN CALVIN (1590–1564),
HUGO DE GROOT (1583–1645), and JÁNOS CSERE APÁCZAI (1625–1659) [Magyar
Encyklopaedia (Utrecht 1665)] as well.
17 For the word, cf. note 9.

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phantasmagoria)—our revolution had been started, pursued and


remained all through in clear morality.
Revenge en masse with a narrow-minded brutality is only a
continuation of antecedents and origins of 20th century Communism
in realisation of Bolshevism.
If and insofar as this holds to be true, then it is hardly
reparable a shame of our newly built law and order after
Communism is collapsed that under the aegis of a vague
constitutional declaration—“The Republic of Hungary shall be an
independent, democratic state under the rule of law.”18—, legal
protection has primordially been extended to the dirt of a guilty
past which, by criminal deeds committed against its nation,
disregarded even the laws its own dictatorship had enacted, by the
fact that passing of physical time in the hell of inhumanity has been
lifted to normal status, making statutory limitations run as if the
whole regime were under conditions of the Rule of Law.
Moreover, this is not simply one minor affair occurred. Not
even may we claim that helplessness, impotence or perhaps
incidental moves extinguishing each other may have been
instrumental in producing such effect. For the Constitutional Court
as the highest representative of the Rule of Law in Hungary
declared it after long deliberations as the message of the Republic
of Hungary, that the chance of subsequent judicial processing of
such criminal deeds that had once been committed—and also the
persecution of which had once been blocked—by agents of the
dictatorial state for the sake of the same state, are ruled out from
the rule of this law for pure reasons of the Rule of Law—if in the
meantime these deeds were either cynically self-pardoned by the
same regime or expired that period of statutory limitations which
has ever been devised to conditions of the normal functioning of a
state machinery.
In our civilisation and especially in periods of heroically
began reconstruction from economic and societal wreckage as left
here by Communism, no other nation sunk so low in a
misunderstood rule of law servilism.

18 Article 2, section 1.

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Not even the kind of coupling has elsewhere occurred that


the same forum in re of the same object would at the same time
declare an international law path to be exclusively available.
Nolens, volens it has been messaged thereby that the law in force in
Hungary does not extend any interest in and sensitivity to the
chance of processing murderous deeds of the past in law,
committed as fore-planned systematically—out of sheer
considerations of tactics and mere purposefulness in flat disregard
at own laws—by agents of the state then. The same way, as also
messaged, it is quite alien to it to take account of either the human
loss caused by those past deeds or the demands of the social sense
of justice, by differentiating between the total denial of law in
dictatorship and the unconditional affirmation of the law in a
constitutional state.19 At the same time, if independently of the
Constitutional Court dictum there is some international law
provision notwithstanding, superior to domestic control in its
capacity to over-write domestic law, then the Court is ready to

19 “Legal certainty based on formal and objective principles is more important than
necessarily partial and subjective justice.” “Failure to apprehend or the dereliction of duties
by the authorities which exercise the punitive powers of the State is a risk borne by the
State.” “[T]he statute of limitations [...] extinguishes punishability irrespective of the
reasons for not prosecuting the offender; the offender cannot be burdened by the State’s
dereliction of its duty.” “Retrospectively, the criminal legal policy of an epoch can as well
be qualified as unconstitutional without, however, substantiating the claim to posteriorly
declare selected parts of the punitive power operating contrary to the rule of law principles
as non-existent, by concluding therefrom that, within the given circle, the period of
limitation has not had even a start.” Decision no. 11/1992 (5 March) of the Constitutional
Court. Into such a narrowly rule-positivist stand—modelled by the 19th century-old German
„das Recht ist das Recht” [law is nothing but law]—neither natural human reason, nor values
of life at the foundation of law, nor any principle respected as immutable for thousands of
years can penetrate in order to complement or substantiate mere positivation. Surprisingly,
a paradox with open logical inconsistency was also formulated by the same decision: “With
regard to the Act under review, the statute of limitations for the criminal offences committed
between 21 December 1941 and 2 May 1990 could have been tolled only on the basis of
reasons which were recognized by the law in effect at the time the offences were committed.
That »the State’s failure to prosecute its claim to punish was based on political reasons« did
not exist as a justification for tolling the statute of limitations.” Cf., for the translation of
quotations (except to the third one), László Sólyom & Georg Brunner Constitutional
Judiciary in a New Democracy The Hungarian Constitutional Court (Ann Arbor: The
University of Michigan Press 2000), pp. 221, 226 & 228; and as to the background, by the
present author, ‘Creeping Renovation of Law through Constitutional Judiciary?’ in the
present volume.

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acknowledge not to be in a position to stick up to it. All in all, the


Hungarian Constitutional Court dictate has prevented, moreover,
excluded the past to be faced in law; however, if there is a super-
power, that of the international community, which can force its
determination upon the country, then its path can be—nolens,
volens, that is, unvoluntary but freely—followed.
Or, this is rare an occasion for a nation indeed to offer such
a miserable self-picture of being proud of own disability.
Obviously, this negative solution is a standard component of
our rule of law now, proclaimed by the highest state authority.
Namely, how law can be cut away from its societal embeddings,
from its underlying ethos accompanied by functional expectations,
and at last but not the least, from the need encountered for
centuries by countries in the Western hemisphere that the Rule of
Law, as both a distant ideal and everyday reality in formation, shall
always be developed organically and from bottom, with growing
popular participation as pushed by the demand of democratic self-
building, instead of some grace from above, from mere voluntas or
power dictate, out of the pleasure or tyranny of anyone.
Have we missed the road somewhere? Well, in the year of
1956 we might have showed the road. And we have to hope that we
may overcome one day all the faults of our strange change of
regimes by querying its own ontology; and God grant not to be
forced again to survive similar cataclysms.

It is another issue now how the celebration of the 50th anniversary of the Revolution
and Fight for Freedom in 1956 by the present republic can after one and half a decade match
this above philosophy. As the President of the Republic emphasised at the Hungarian State
Opera gala performance on 22 October 2006 [cf. <www.keh.hu/keh>]—in a sensitive
relationship with the stand having taken by him, then in quality of the President of the
Constitutional Court—, “In the way the revolution in 1956 had immediately eliminated the
legitimacy of RÁKOSI’s regime, the legitimacy of KÁDÁR’s regime was ceased in 1989 by the
restitution of the name and honour of the revolution. […] There is no continuity between 56
and KÁDÁR. There is no continuity between KÁDÁR and the democratic state under the rule
of law as established in 1989/90.”

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FAILED CRUSADE*
American Self-confidence,
Russian Catastrophe†
(1. The Pattern-provider and its Transitology) For a long time
now, we have been pondering about the question of what America
may mean for us. What does it represent? What kind of future does
it intend for us to have in our post-communist Central and Eastern
Europe? Perhaps we still remember the admiration with which we
looked upon anything having arrived from there only one and a half
decades ago.
For one and a half decades ago, we embarked upon the
change of regimes with open, almost naive expectations. However,
our enthusiasm soon began to be troubled by ambiguities in our
relationship to America over the period since then. For example,
the entity called America has turned out to be far more spacious
than we had first believed. We had also to realise that it stamps its
action only insofar as it acts in its quality of a federal government.
– For exactly this very reason, we sometimes found its aid policy
rather strange. However, it turned out that although financed by the
federal budget, for the ease of administration the aid distribution is
getting managed by private foundations (most actively by one of
them, linked to a native of Hungary who has for long been known
for his politically partisan actions in the country). – We have noted
its press to have a double-faced policy towards Hungary. But we
have had to learn that media are a holy cow free for both distortion
and defamation in a democracy. – At times, their Embassy in
Budapest seemed to behave past comprehension, especially if
contrasted to experience with our direct connections in
Washington. Well, this too has turned out to be part of the price of
democracy to be happily paid—at least so long as the officials loyal

* In its first version in Hungarian, ‘Amerikai önbizalom, orosz katasztrófa: Kudarcot vallott
kereszteshadjárat?’ PoLíSz (December 2002–January 2003), No. 68, pp. 18–28 & <http://
www.krater.hu/site.php?func=polisz&file=cikkek&cnr=81>.
† Stephen F. Cohen Failed Crusade America and the Tragedy of Post-Communist Russia
(New York & London: W. W. Norton & Company 2000) xiv + 304 pp.

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to the former government are replaced, according to the principle


of prey in their political practice. – Sometimes we used to have the
embarrassing impression as if Washington were simply
unapproachable for certain issues important to us. And what
became obvious is that America too has its friends, and prime
interests connecting them may dictate opportunism as well.
There were times when we felt as if our words were not
understood in Washington, London or Paris. We had already almost
started feeling guilty when Bonn and Ottawa turned out to have the
same complaints. After some time, we had to realise that our
friends do not necessarily differ from their adversaries in that
whether or not they can understand our problems. And what
separates them may turn out to be almost indifferent for us. It would
be, however, unjust to claim that they utterly ignored our then acute
concern about transition. It is perhaps more fair to realise that they
were inclined to have the most of empathy and goodwill towards
their own ideas. Anything new or different was met by suspicion on
their behalf, making their ears closed to the issue.
Their self-confidence was especially striking when they
started to disseminate their own economic models and legal
patterns across continents, having peoples adopt them. For
originally all these were formed by them at their own place, tailored
to their own needs and routines, and for their own use—but just
because they made all them, they thought them to be applicable
universally. They did not waste much time on pondering any
further; actually, they did not trouble themselves about adjusting
their models to the specific environments, conditions and traditions
formed by the thousand-year-old history of the recipient peoples.
On the basis of the single gesture that they sell in our country their
one-book ideal of culture just in vogue with them at the time, they
imagined themselves as historic heroes, or even Founding Fathers,
civilising others by bringing them democracy. They shuddered
even at the faintest idea of any kind of a third or alternative way,
any intermediate solution. They rejected any road that was not
known to or used by them from the outset, without the readiness
even to tolerate it. Any of this simply did not fit in with their idea
formed on the rule of law (or, perhaps, with their political

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calculations or with the constraint of facing their own


conscience)—ironically, as it was exactly America that had once
taken the lead in extorting the trials of Nuremberg and Tokyo (not
so much relevant now on account of their natural law foundations
but rather owing to the sheer fact that the same America had once
proven to be capable of creative thinking, detaching itself from its
own domestic everyday routine, when eventually the lives of own
soldiers had been at stake, without the counterbalancing power of
economic interest)—when it was high time to assist the new
democracies, recovering from the misery of Socialism imposed
upon them, in facing the injustices [in German: unRecht = illegal
practices organised into a dictatorial regime] of their past.1
The term is also false by which American scholars tried to
transplant their own wishful vision first to the Mediterranean, freed
from the generals’ dictatorship, then to the entire Central and
Eastern European region, recovering from the ruins left by
Socialism’s one-party dictatorship and centralised planned
economy—as a new field of experimentation for American “Law
and Development” efforts once made in Latin America, which were
bound to end in ignominious failure of the idea of “social science”,
declared feasible by their leftist sociologists. Notably, they called
their panacea transitology, a magic key reducible to its refusing
the subjects of American experimentation upon them any genuine
transition in fact.
It was also amazing to realise that only those Hungarian
academic circles were paid attention by them who told the same as
they did. Even with them, actually, the debate was orchestrated
with shades within unison only. The result of this became
augmented to cosmic dimensions, as though to make up for the
want of diversity in approaches and opinions. Of course, in
American imperial proportions, with hundreds of publishing
1 In the light of Hungarian case studies, see, by the author, Transition to Rule of Law On the
Democratic Transformation in Hungary (Budapest: ELTE “Comparative Legal Cultures”
Project 1995) 190 pp. [Philosophiae Iuris] and, with respect to imperialistic doctrinarianism
in legal transfer, cf. also Coming to Terms with the Past under the Rule of Law The German
and the Czech Models, ed. Csaba Varga (Budapest 1994) xxvii + 178 pp. [Windsor Klub]
and Kiáltás gyakorlatiasságért a jogállami átmenetben [A call for practicality in the
transition to rule of law] ed. Csaba Varga (Budapest: AKAPrint 1998) 122 pp. [Windsor Klub
könyvei II].

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houses and thousands of periodicals pouring masses of scholarly


papers, and where the participant cannot be informed otherwise
than by the help of updated electronical bibliographical databases,
none of us can have a reliable overview about the richness of the
scholarly output. However, if one searches carefully enough, one
may find stands and treatises intended to start polemics either for
curative purposes and/or by moral protest; moreover, one may
realise that at the margins of such monolithic gigantic buildings,
these rare exceptions, too, can represent monumental dimensions
with accumulating elements of certainty and useful lessons.
The present book by a historian specialising in Soviet studies
at Columbia University is not simply the product of posterior
argumentation and retrospective investigation. It is also the
document of a scholar’s outrage indignation. For he had been
warning for years in vain as a contemporary participant to the
processes mainly on the columns of the eminent The Nation that
the arrogance of the political power, favouring financial vultures
and befooled by intellectuals’ irresponsibility, may cause horrible
damages, and not exclusively to the poverty-stricken people of
several hundreds of millions of the United States’ temporarily
shaken one-time adversary but, due to its own blindness, to
America’s future respect and self-esteem as well. With his fears
having come true, the author has been trying to account on the
issue, in order to help find a way out of the overall crisis and to
prevent with the exclusive means available to a scholar, notably,
critical evaluation, the old mistakes from repeating.

(2.a. Organised Pressure on Making Patterns Followed)


Already the stand taken at the beginning is to point out to some
serious disorders.

“But it was the CLINTON administration that


turned the missionary impulse into an official crusade
[…] to transform post-communist Russia into some
facsimile of the American democratic and capitalist
system.” (pp. 6 & 5)
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As a kind of preventive step, the US federal government tried


to determine how the “domestic transformation of Russia” should
take place (pp. 6–72), in order to prevent Russia from proceeding
on by proposing “a strange, ambivalent path of its own confused
devising”. And thereby, from an American perspective, speaking
“[m]etaphorically, Russia played helpless child, with the West as
omnipotent adult” (p. 7 & note 53).

On America’s behalf, it was the temporary


concentration of interests by the political power,
economic (investors aiming at maximum profits) and
academic circles (specialists and advisors intent on
gaining positions), as well as the media, that have
contributed to sealing Russia’s destiny after
Communism.

As regards the political scene, President CLINTON was the


first to take a stand clearly: “We have interests and values. They are
embodied by the policies and direction of President YELTSIN.” (p.
250, note 64) Then, in this very spirit, Russia was stormed by
“legions” of “enlightened missionaries” and “evangelists” in the
“rush to give advice” (as, e.g., JEFFREY SACHS of Harvard) (p. 7 &
note 85). For instance, a programme circulated in Washington openly
admitting that “The key to [Russia’s] democratic recovery is no
longer in its hand. It is in ours.” (p. 86) has never been denied since.
All this was accompanied by financial blackmailing in
practice, which triggered corruption mechanisms on the other side

2 As reported from the State Department by Elaine Sciolino in New York Times (February 4,
1993).
3 Steven Erlanger in New York Times (July 28, 1993), for the first quote, and The New Russia
Transition Gone Awry, ed. Lawrence R. Klein & Marshall Power (Stanford: Stanford
University Press 2000), p. 7 [Social Science Library: Economic Growth Center Collection],
for the second one.
4 Quoted by Daniel Williams in Washington Post (April 5, 1993).
5 Francis X. Cline in New York Times (January 16, 1992) as well as Peter Passell in New York
Times Magazine (June 27, 1993), p. 60, and James Risen in Los Angeles Times (September
5, 1991).
6 Quoted from ZBIGNIEW BRZEZINSKI in Foreign Affairs (Fall 1992), p. 33 and New Times
[Moscow] (1993), No. 23, p. 26.

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so heavily that Russia’s Ambassador to Washington, VLADIMIR


LUKIN, had to complain of “infantile pro-Americanism” at the end
of 1992, trying to warn his nation that the continuous political and
financial intervention by the US could promise no strategic solution
whatsoever, because America would not aim at re-constructing
Russian economy anyway, only at looting its natural resources (p.
107). Moreover, after the dollar had actually been proposed as a
Russian currency, the Duma condemned in a formal parliamentary
resolution the West’s “crude interference in the internal affairs of
Russia.” (p. 109)
A new kind of cynicism built on the association of politics
and business is now penetrating academic life. Eventually,
American university institutions specialising in Soviet studies went
so far as to conclude business agreements with investors to the final
effect that—due to suspicious dealings and interpenetrations—the
Institute for International Development of the Harvard University
(not long ago directing Russian governments with great power
arrogance) had to be suddenly dissolved.7
We get to know that American scholars are “devoted to a
group-think” (p. 61) by “preferring consensus, even orthodoxy, to
controversy” (p. 20). They may content themselves with
applauding alternating mainstream trends, exalting the fashionable
and keeping quiet about criticism or anything different.8 So it may
be an easy job for them to say that no matter how great the Russian
sacrifice, it cannot be too much, and however “rocky” the road, the
transition “to free-market capitalism and democracy” is
“necessary”; or, that what is just going on is both “good” and
“progressive”, “great” and “historic” (p. 219). No counter-

7 Cohen, p. 263, notes 87 and 90—e.g., Harriman Review [Columbia University] (June
1999)—and p. 269, note 117.
8 For example, Anders Åslund How Russia Became a Market Economy (Washington, D.C.:
Brookings Institution 1995) xviii + 378 pp. is declared to be a basic work in New York Times
Book Review (July 23, 1995), while Lynn D. Nelson & Irina Y. Kuzes Radical Reform in
Yeltsin’s Russia Political, Social, and Economic Dimensions (Armonk, N.Y.: M. E. Sharpe
1995) xiii + 256 pp. is not found worthy even of reviewing. Cohen, pp. 256–257, note 40.
9 Speech of Deputy Secretary of State Strobe Talbott in Johnson’s Russia List (October 2,
1999); for the first usage of the attributes, see Michael McFaul in Current History (October
1994), p. 313, Thomas A. Dine in Problems of Post-Communism (May–June 1995), p. 27, as
well as Jack F. Matlock, Jr. in New York Times Book Review (April 11, 1999), p. 11.

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argument holds any longer, perhaps not even ethical concerns by


academics. The coup of YELTSIN as the very first open attack
against a working European parliament since the Reichstag fire
(1933) was justified by world-renowned Harvard historian RICHARD
PIPES as a constraint (even if “resorting to methods that in the West
would be unacceptable”); and President YELTSIN, the putschist
violating the Constitution was compared by the famously liberal
Yale constitutional scholar BRUCE A. ACKERMAN to no lesser a
personality than GEORGE WASHINGTON (pp. 19–2010).
As far as the American press is concerned, it was all along
prepared and ready to incite, instead of unbiased observation and
description. “Like old-time Soviet journalists, American
correspondents pardoned present deprivations in the name of
future benefits that never materialized.” (p. 15) As they
proclaimed, the greater the “rubble”, the more promising the
future. They called for the “demolition of the Soviet ancien régime”
(p. 37). They drew trivially rude parallels: “One can’t make an
omelette without breaking eggs.” (p. 1411) It has turned out only
slowly that the illustrious media-expertise may scarcely know
about anything whatever else than its own prejudices.

“Russia was not the primary profession of most


of [...] Russia-watchers [...], who actually knew little
about the country, not even its language. (The latter
factor no doubts accounts for the striking absence of
references to the local press by most American
correspondents in Moscow.)” (p. 17)

Aware of its own weakness in arguments, the American


media retaliates also by insulting every critical or differing opinion.
The Russians themselves are outraged so as to complain of “media

10 Richard Pipes in New York Times (March 14, 1993) as well as Bruce A. Ackerman in ibid.
(March 3, 1993). Professor Cohen raised his voice in these very same days [Washington Post
(March 28, 1993)] in warning that the United States “risks being remembered for having
supported measures that destroyed another nascent Russian experiment with parliamentary
democracy and plunged the country back into its despotic traditions.” (p. 115)
11 Charles Krauthammer & Jim Hoagland in Washington Post (March 19, 1993), as echoed
also by a politician in US News and World Report (November 29, 1993), p. 49.

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propaganda”. If you dare criticise the politics of YELTSIN or the


International Monetary Fund, you are “already not a democrat, and
you’re lucky if they don’t call you a Communist-Fascist.” (p. 13 and
note 2112) Not even the Soviet dissidents, having suffered so much
in the former regime, are permitted to break away from the chorus
echoed by the flock. If they do, the American media will promptly
see to it that ALEKSANDER SOLZHENITSYN is dismissed as an
“irrelevant political dinosaur” and ANDREI SINYAVSKY’s
“understanding of the Russian transition” is degraded as an
“analysis based on emotion, conspicuous omission, disorientation,
and anecdote” (p. 4713).
Or, the harsh reality is quite disappointing. How does bitter
humour react to it?

“We thought the Communists were lying to us


about socialism and capitalism, but it turns out they
were lying only about socialism.” (p. 115)

(2.b. Provoked Bankruptcy) What does all this look like from
close by? An outsider, living in abundance, is of course readily
pleased to dispense advice. As Harvard historian PIPES wrote with
the authority of an oracle, it is “desirable for Russia to keep on
disintegrating until nothing remains of its institutional structures.”
Theoretical economist RICHARD E. ERICSON even added to this:

“Any reform must be disruptive on a


historically unprecedented scale. An entire world
must be discarded, including all of its economic and
most of its social and political institutions, and
concluding with the physical structure of production,
capital, and technology.”

12 Grigory Yavlinsky (who led a presidential campaign against YELTSIN in 1966) in


Известия [Izvestiija] (July 12, 1995).
13 David Remnick in New York Review of Books (April 9, 1998), pp. 13–14, as well as
Michael Scammell in New York Times Book Review (December 3, 1998).

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Another economist explained,

“A successful program must be trenchantly


negative. […] It must aim at destroying institutions.”

The World Bank does not back this up; all they do is rather
to assist. One of their officials apologises only subsequently, in
personal shame:

“Some economic cold-warriors seem to have


seen themselves on a mission to level the »evil«
institutions of communism and to socially engineer in
their place […] the new, clean, and pure »textbook
institutions« of a private property market economy.”
(pp. 37–3814)

In other words, just like a few decades ago the French


nostalgically sought the fulfilment of their own unfinished
Revolution in their attachment to the Soviets, however brutal the
Bolshevik experiment was, Russia has become for the Americans a
“superior laboratory” to test their liberal universalism (p. 263, note
8615). They got carried away by the epidemic of universalising
anything originating from America so much that they declare even
Sovietology outdated: they claim Sovietologists to have “lost their
subject”, as Sovietology became a mere application of their
fantastic new universalism: “comparative”, “universalistic”, and
indeed, “truly scientific” (p. 22). At bottom, the assumption is
merely a “political conceit”. “Arrogant” and “teleological”, it is an
academic expression of America’s post-Soviet “triumphalism”, a
“pseudo-scientific version of FRANCIS FUKUYAMA’s End of History

14 Richard Pipes in Commentary (March 1992), pp. 30–31; Richard E. Ericson in Journal
of Economic Perspectives (Fall 1991), pp. 25 & 26; Joseph Stieglitz Whither Reform?
(Washington, D.C.: World Bank 1999), p. 22.
15 M. Steven Fish in Post-Soviet Affairs (1998), No. 3, p. 215. In contrast, Professor Cohen
started to keep asking as early as March 1992: “should everything created during the Soviet
period be rejected as criminal or unworthy, and everything built from scratch?” Is it
inevitable indeed to “imitate a Western model” or should they, “learning from Western
experiences”, rely on “Russian traditions and circumstances” instead? Is “shock-therapy”
unavoidable indeed or would a “gradual” progress result in launching more favourable a
procedure? (pp. 85–86).

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thesis” which, along with the most of the ‘Washington Consensus’,


“did not survive the twentieth century.” (p. 2316)
All in all, this is but a great power politics, in the mirror of
which anything can only re-actualise something known from earlier
sets of déjà vu—for America cannot help “seeing the world through
a set of standard templates.” (p. 61)17
For obvious reasons, this depth of practical concern—further
deepened by American virtues like “the disdain for gradualism and
penchant for extremist measures” (p. 39)—is not likely to bring too
much benefit for Central and Eastern European states, made target
countries now. So it is no use for the Russian press either to
proclaim far and wide that in order “to build, it is not necessary to
destroy everything first”, or to compare their present with the
devastation caused by the Second World War, with “genocide” and
the destruction of a “medium-level nuclear attack”; anyhow, they
feel now they are on the way to arrive “from a state of crisis to a
state of catastrophe.” (pp. 38 and 4018)
The facts shown by statistical data reveal a cruel state. The
money what Russians were actually to get, that is, what they were
kept in check with until early 1992, amounted to not more than 7
percent of all American international aid schemes (in contrast to
the 75 percent of European aid programs provided
unconditionally). To make matters even more dubious, they were
granted most of this amount in fact as a credit—just to enable them
to buy up the agricultural surpluses of America!
In chronological order, events are as follows: the cessation of
the Soviet Union (1991) followed by shock therapy (1992),
including financial restrictions, withdrawal of consumer price
supports and social allocations, the complete privatisation of state-
16 Even John Gray in The Nation (October 19, 1998), pp. 17–18 is amazed to find the
conformity of opinions.
17 Michael Kelly in Washington Post (November 10, 1999).
18 GRIGORY YAVLINSKY, quoted in Nelson & Kuzes Radical Reform in Yeltsin’s Russia [note 8], p.
21; G. Khanin & N. Suslov in Europe–Asia Studies (December 1999), p. 1450, Сергей Юревич
Глазьев [Sergei Iurevitch Glaz’ev] Геноцид Россия и мирoвый порядок, стратегия
экономическая роста на пороге XXI века [Genotsid: Rossiya i miroviy poryadok, strategiya
ekonomitseskaya rosta na poroge XXI veka / Genocide: Russia and the World Order, or the
Strategy of Economic Transition at the Beginning of the 21st Century] (Москва: Терра [Terra]
1998) 320 pp., Boris Kagarlitskii in Новая Газета [Novaia Gazeta] (February 21, 2000); N.
Perlakov & V. Perlamutrov in Вопросы экономики [Voprosi ekonomiki] (1997), No. 3, p. 76.

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owned companies, opening of markets to the world and


minimisation of any governmental intervention. Financially all this
was accompanied by hyper-inflation in 1992 and 1993, by the
collapse of the economic system in 1994, ending in August 1998
by the devaluation of the rouble and the freezing of bank accounts
(with an additional loss of 80 to 100 billion dollars for American
investors, in which the share of GEORGE SOROS’ Quantum Fund
alone was about 2 billion dollars).
By this time, the GDP declined to barely half of the value at
the beginning of the decade. Meat and dairy herds fell to one
quarter, and real wages to less than one half of their previous level
(let us remark just as a reminder that even the Great Depression
once resulted in America a 27 percent decrease of the output). By
2000, investments fell to one fifth of their value a decade earlier
(pp. 40 and 41). This caused the people a suffering unprecedented
in peacetime (as the governor of Yakutiya told in the autumn of
1998: “Since 1991, we’ve survived six, seven years on the previous
regime. As of today, those reserves are 100 percent exhausted.” p.
4119), but profiteers (unless the fate of their own is at stake) are
governed by principles and not empathy: “More shock therapy” is
the American response to this all (p. 15), then at the turn of 1999
and 2000, when PUTIN was to come to power, an International
Monetary Fund war-cry was heard again, calling for a “second
beginning” (p. 5720).
On 21 September 1993, actually YELTSIN dispersed the
Duma by force of arms, and took over control of legislation.
Secretary of State WARREN CHRISTOPHER rushed to Moscow at once,
putting aside both his own domestic political credo and the general
conviction of the masses of Russians,21 to greet this act of fait
19 Quoted by Michael Wines in New York Times (October 21, 1998).
20 From John Odling-Smee in Financial Times (August 23, 1999), via a long series of
newsmen, specialists and officials, up to Michel Camdessus in Moscow News (December
15–21, 1999).
21 At the December 1993 elections controlled by YELTSIN, 85 percent of the participants
voted against him (p. 129); in early 1995, Общая газета [Obshchaya Gazeta] protests in
a two-page headline: “BORIS YELTSIN Is Guilty—Before the Law, Before the People, Before
History!”, and a mainstream insider forecasts that “No one will escape the people’s
retribution. All plunderers of Russia await their own Nuremberg trials.” (p. 137); and by late
1999, 90 percent do not trust YELTSIN and 53 percent wants him put on trial, with street
protesters claiming that “YELTSIN is an enemy of the people.” (p. 141)

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accompli on 23 October, praising the country “being reborn as a


democracy” (p. 126 and note 1222). And the assertion of American
interests would go on undisturbed. Former Soviet dissidents charge
“the anti-democratic and criminal actions” of the YELTSIN-
administration and add in warning that “Now the same policy is
beginning with regard to PUTIN.” (p. 19423) As the author writes,

“History will also record that the president of


the United States in effect twice endorsed or forgave
Kremlin war crimes against its own citizens in
Chechnya by equating them with LINCOLN’s war
against secession and slavery and then using the word
liberate to characterize the destruction of Grozny.” (p.
19424)

(2.c. Cui prodest?) The sarcasm is caustic when the author


confronts the key words of the American success propaganda with
the alarming facts of the actual state in Russia. Because
• what is presented as “reform” and “remarkable progress”
by American scholarship and press has in reality been an
industrial degradation, unprecedented in peacetime in
modern Russian history, with losses in agriculture and
livestock worse than even those caused by the STALINian
rush for forming kolkhozes, and a total dependence on
imports regarding food and medicine, with the ensuing
pauperisation of 75 percent of the population. If we look
at the huge number of disintegrated families, the damages
outweigh those by World War II, and 50 to 80 percent of
school-age children are now burdened with marks of

22 U.S. Department of State Dispatch vol. 4, no. 43.


23 Manifesto of a group including ANDREI SAKHAROV’s widow, quoted by Lars-Erik Nelson
in Johnson’s Russia List (February 23, 2000).
24 “to liberate”: Steven Munson in Washington Post (February 6, 2000), as well as Peter
Bouckaert in ibid. (February 25, 2000). As Professor Cohen adds (p. 279, note 29), when the
Russian flag was raised over the rubble of Grozny, PUTIN also used this same word. Cf. Lyoma
Turpalov in Associated Press Dispatch (February 6, 2000).

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physical or mental defects, with an entire population in


the background that “awaits the approaching winter with
horror” (p. 2825);
• the reality behind “the best-performing emerging market”
is nothing more ambitious than an economy artificially
operated through presidential decrees and administrative
measures—instead of competition; with contract killing
as a supreme form of litigation—with a late recognition
after the crash only that “fundamentals of a market
economy remain unknown in Russian commercial life”
(p. 2826);
• behind the “capitalism” of privatised banks, there are
nothing but depositors, and institutions used for money-
laundering with no loans for real production, which, in
want of state treasury and proper property laws, channel
immeasurably more capital abroad than to capital
investment in domestic production (p. 2927);
• true, there was “privatisation” but no private economy
has been established ever since. In the grip of state
restrictions, small factories keep stagnating with a total of
870.000 workers, with half the productivity of Soviet
times. The operation of banks is based on corrupt cross-
loans between state and criminal circles, threatening to
collapse every moment (pp. 29–3028);
• behind the slogans of “monetarism” and “victory over
inflation” through a “stable currency”, the bleak reality
stands for governmental suspension of the payment of
wages and pensions for nearly a decade with half of all

25 Незавысимая газета [Nezavisimaya Gazeta] (October 16 & 20, 1998).


26 Garry Kasparov in Wall Street Journal (October 16, 1998), acknowledging, a year after
the total collapse, “a total divorce between the financial sector and the real economy”. ERIC
KRAUS, quoted by David Hoffman in Washington Post (August 17, 1999).
27 PUTIN’s later Prime Minister acknowledges what he had known for one and a half
decades, namely that most of those institutions “have never been banks in the real sense”.
MIKHAIL KASYANOV, quoted by Jonathan Fuerbringer in New York Times (April 21, 2000).
28 Again, MIKHAIL KHODORKOVSKY concedes belatedly that “privatization in Russia was
largely formality rather than a true reform”. Quoted by Steve Liesman & Andrew Higgins in
Wall Street Journal (September 23, 1998).

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commercial transactions taking place by way of barter (p.


3029);
• processes underlying the establishment of “civil society”
and the “creation of a middle class” imply nothing but
overall disorganisation arising from pauperisation. The
population’s savings have become devalued. The
inhabitants have no incomes. In fact, they have long ago
consumed the reserves once accumulated, and practically
scarcely know money in everyday life (as 75 percent have
to produce own food for themselves). Furthermore, 86
percent of inhabitants linger in misery without health
provision, and men’s life expectancy has dropped back to
less than sixty years, a value already reached a century
before (pp. 31 & 4230);
• “constitutional democracy” with “free press” and
“federalism” on paper, while in fact a regime founded by
a coup, with secret services in the background, and a
monarch-like central rule by the President,31
accompanied by a manipulated media network, a country
totally fallen apart to territories ruled by “little princes”,
behaving like feudal barons in refusing tax payment,
prohibiting goods from being taken out of their “fiefdoms”
and even threatening to introduce their own currency (pp.
32 & 261, note 66);
• and all this under the claim of “joining the West” in a
country where 96 percent of young people condemned the
NATO-bombing of Yugoslavia led by the United States in
1999 as a “crime against humanity”, and where 81
percent rejected US policy towards them as anti-Russian,
imposing a “reverse iron curtain” upon them (p. 33).
Characteristically of the more recent developments, once the
ever first post-Communist Russian Prime Minister to attain
majority in the Duma, EVGENII PRIMAKOV (from September 1998 to
29 Duma deputy NIKOLAI GONCHAR, as quoted by Giulietto Chiesa in La Stampa (October 8,
1999), pointed out the return of state serfdom as a phenomenon of re-feudalisation.
30 Moreover, with “well stocked stores” resembling rather “museums, where people come to
look but not to buy.” Katrina van den Heuvel in The Nation (August 10–17, 1998), p. 5.
31 Ruling by issuing 2,300 decrees a year (i.e., by 6–7 ones per day!) (p. 137).

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May 1999) announced changes, he became hated in Washington


and, with reference to his past as a correspondent in the Arab
region, his discrediting started with editorials “Beware Primakov”,
“Fire on Primakov” and the like (pp. 272–27332).
Кто виноватъ? Who is to blame? A failure may happen but
there is no one to be held responsible. “U.S. politicians and
officials, as we know, are allergic to self-criticism” (p. 60),
therefore no one is named and no intervention is remembered.
Self-critical voices can be heard, if at all, only posteriorly,
admitting, for instance, that owing to a “reform-to-ruins process”,
“We have done more harm than good to genuine reform.” “We were
wrong”, for “we have viewed Russian reality through the lens of
ideology”, and thereby “We gravely misunderstood the patient”
(pp. 61–6233). It is exclusively the machinery of disclaiming and
rejecting acceptance of any responsibility that keeps on operating
smoothly.

“All Western papers were writing that all the


Russian people were undertaking reforms. Now they
are writing, with the same enthusiasm, that all
Russian people stole that money. It wasn’t the truth
then and it isn’t the truth now.” (p. 20834)

And if we, searching for an indirect response, consider the


genuine interest involved in the question of Cui prodest?, all we
can tell is that from behind the official wall of silence, both the CIA
and the FBI took notice of the mutually corrupting connection
between the “[h]undreds of billions of ill-gained dollars flowing
from Russia to the West since 1992, owing significantly to U.S.-

32 Seymour M. Hersh ‘Saddam’s Best Friend’ New Yorker (April 5, 1999), pp. 35–41,
William Safire in New York Times (September 17, 1998), as well as Wall Street Journal
(March 12, 1999).
33 David Ignatius in Washington Post (September 27, 1999), William Safire in New York
Times (September 9, 1999), as well as KAREN DAWISHA, quoted by D. W. Miller in Chronicle
of Higher Education (September 3, 1999), p. A24, Charles H. Fairbanks, Jr. in Journal of
Democracy (April 1999), p. 52, Yoshiko Herrera Program on New Approaches to Russian
Security ([Boston]: Harvard University Davis Center, October 1999), p. 82 [Policy Memo
Series 85].
34 GRIGORY YAVLINSKY, quoted by Bloomberg in Johnson’s Russia List (October 6, 1999).

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designed policies adopted in Moscow” (p. 19435). Anyway, a CIA


specialist on Russia told:

“It is hard to escape the suspicion that the


mammoth stake of American investment houses
played a role in U.S. government and IMF behavior”
(p. 19536).

(2.d. Democracy Conceived in Tutelage) In the perspective


of American history, all this is far from being inevitable, as there
has ever been an alternative to the loathsomeness of a tutelage
approach whenever they really wanted. As GEORGE F. KENNAN
formulated already half a decade ago,

“Let us not hover nervously over the people


who come after, applying litmus paper daily to their
political complexions to find out whether they answer
to our concept of »democratic«. Give them time; let
them be Russians; let them work out their internal
problems in their own manner. […] The ways by
which peoples advance toward dignity and
enlightenment in government are things that
constitute the deepest and most intimate processes of
national life. There is nothing less understandable to
foreigners, nothing in which foreign interference can
do less good.” (p. 21537)

President RICHARD M. NIXON pointed out, shortly before the


inauguration of President CLINTON, that

35 Douglas Farah in Washington Post (October 2, 1997).


36 GEORGE TENET, quoted by Susan Ellis in Johnson’s Russia List (February 3, 2000) and
LOUIS J. FREEH, quoted by Fritz W. Ermarth in ibid. (January 20, 2000).
37 George Frost Kennan American Diplomacy 1900–1950 (New York: The New American
Library 1952), p. 112.

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“I’m not enthused about this idea of sending


our political experts over and telling these poor
people how to win an election. I think it’s a little silly
and even insulting.” (p. 271, note 638)

On the other side, once YELTSIN left the scene, the new
President VLADIMIR PUTIN did not hesitate a moment to reject
intervening tutelage. He declared plainly in late 1999 that

“a truly successful revival of our Motherland


without excessive costs cannot be achieved by simply
transferring abstract models and schemes taken from
foreign textbooks to Russian soil. [...] Russia will not
soon become, if it ever becomes, a second edition of,
let’s say, the United States or England.” (p. 18139)

The present-day state of Russia is therefore rather meagre:


degenerated into a “manipulative democracy”, in which
“democratic institutions” can “produce only results ordered by the
state”. Or, this is hardly more than “pseudo-democracy”, properly
speaking, “democracy without alternatives” (p. 18540).
Regarding the prospects, it would be futile to hope for any
sudden turn in long-established directions, any major turnaround
in profit-hungry attitudes. Significantly enough, in the presidential
election campaigns of 2000, neither AL GORE nor GEORGE W. BUSH
separated themselves from such past practices. The chief foreign
policy adviser could not help echoing already

“the crusade’s missionary premise: »The twenty-


first century will be based on American principles.«”
(p. 24641)

38 Time (April 2, 1990), p. 48.


39 Незавыcимая газета [Nezavisimaya Gazeta] (December 30, 1999).
40 SERGEI MARKOV, quoted by Mikhail Delyagin in Johnson’s Russia List (January 29, 2000),
Igor Oleinik in Новая газета [Novaia Gazeta] (January 10–16, 2000) and KONSTANTIN
TITOV, quoted by Sophie Lambroschini in Johnson’s Russia List (January 18, 2000).
41 CONDOLEEZZA RICE, later on National Security Advisor, then, Secretary of State in the
GEORGE W. BUSH administration, quoted by John Simpson in Electronic Telegraph [UK]
(January 16, 2000).

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With such developments assessed, Professor COHEN cannot


conclude anything more trustable than what CHRISTianity and
KANT’s categorical imperative have for centuries professed as
Europe’s common creed: “Americans should do nothing in Russia
that we would object to a foreign state doing in our country.”42

(3. Becoming a Pray of Globalism) Looking back from the


present, we can now realise how perilous winds whirled around us
and how lucky we may be now to have avoided being carried along
by some of the rushing currents despite being a small country. Of
course, Professor COHEN’s academic recollection is dedicated to
the part played by America and does not therefore equally present
all the players in the game. Nevertheless, we can see that no matter
how much diversified the American domestic scene is—with
politics planned to extend influence, business circles to
make profits, foundations to prepare for social engineering,
academia to professionalise transitology, and media to serve
any mainstream—, participants have at once realised what the
common denominator is (p. 144). And all became worthy partners
(both as challengers and as partners in looting) to those less
articulated Russians who, in response, managed to transform
Communism into criminal hoarding. And, in fact, this could be
carried out in an anarchy marshalled by a weak and corrupt
government as assisted by those selling off the fortune of their
nation, united in one conspiracy of “bandit liberalism”, as ADAM
MICHNIK once described it (p. 278, note 1843). This was a common

A losing candidate, former senator BILL BRADLEY criticised the CLINTON administration’s
Russia policy as “perilously counterproductive” [a speech at Brown University on 3 March
2000, quoted by Bill Bradley The Journey from Here (New York: Artisan 2000), ch. 8], and
the candidate PATRICK J. BUCHANAN condemned the former government for “treating Russia
as a defeated nation” in Johnson’s Russia List (November 23, 1999).
42 With the notice generously added: “If any U.S. advice is really needed, e-mail is less
intrusive and cheaper.” (p. 216)
43 Незавыcимая газета [Nezavisimaya Gazeta] (January 13, 2000). For additional
contexts and details, cf. also Vladimir Shlapentokh Russia Privatization and Illegalization of
Social and Political Life (Michigan State University Department of Sociology: September 25,
1995) 44 pp. [NATO CND {Chris Donally} (95 459)].

216
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game for Russians and Americans involved, full of continuous


tension but yielding great profits.
It is by far not the merit of smaller entities in Central and
Eastern Europe that their institutional network and social structure
were not as monolithic as the ones in the Soviet Union. Owing to
this, after the collapse of Communism, they could transform into
more articulated structures, focussing on the development of civil
society. Or, their advantage may have resulted mainly from the fact
that the Central and Eastern European diversity has ever been
embodied in relatively small size states. As independent actors on
the international scene, all we others could represent competing
interests also complemented by mutual mistrust, and, due to such
a programmation and having competing calculations of national
profit-maximalisation in mind, on an international scene within
which American foreign policy was determined not to foster any
local and regional co-operation whatever, we proved less accessible
for the mass manipulation by an American Moloch.
One part of the lessons that can be drawn now is certainly of
a political nature, pointing to the significance of internal
structuration and the necessity of collective strategy with co-
operative schemes in Central and Eastern Europe. The other part
carries a clearly professional message that, already in the past
period, warned us (as against the then Muscovite universalism and
voluntarism) of the dramatic import of the particularity of hic et
nunc at any time. Paradoxically enough, this message was inherent
(in contrast to our days’ American devastating mainstream of an a-
historical universalism) in the doctrine of MARXism (by virtue of
the categories of historicity as well as of concreteness and
particularity), and could thus substantiate some sensitivity against
imperial, Moscow-dictated panels at a theoretically higher level, as
providing a rather demanding academic response. I mean here the
series of the Socialist research dedicated to modernisation—in
history to sociology, economy to jurisprudence—in the last decades
of the bygone regime, carried out within an all-Socialist academic
co-operation, sensitive of domestic national interests to a by far

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greater extent.44 Among others, such a research may have


demonstrated how much social institutions are embedded (through
a manifold complex of mediating factors) in the social existence at
any time (in a continuum of past and present, traditions and
inspirations) in a way alien to mechanical treatment, which would
enforce one single principle by ignoring the uniqueness and
concreteness of the variety of the particular historical
manifestations.
Aware that knowledge arises from experience (as refined by
scholarly methodology), we have to rely on our own experience first
of all, taking into account any accessible external experience as
well. For own knowledge can exclusively arise from own history,
traditions, past and present successes incorporated in own identity,
from the memories of past failures and from the way we are used to
processing them both emotionally and rationally, and from skills,
abilities and uses formed in reaction to these all.
We may be tempted—and not without reason—to suppose
that it is perhaps not some specifically Soviet or American
affliction but a fate characteristic of big powers45 that they
frequently resort to simplifying schemes and explanations, reduced
to one single principle. After all, their experiences are drawn from
more universal or global a perspective and dimension, so they tend
to become mistrustful towards anything unique, small-sized and
changeable, out of their everyday routine. The situation is paradox.
So is the fact that not long ago we still attributed the Communists’
suspicion towards any spontaneity in society to their historico-

44 E.g., Az 1970-es évtized a magyar történelemben [The decade from 1970 in Hungarian
history] ed. Miklós Stier (Budapest: [MTA KESz Sokszorosító] 1980) 71 pp. and, especially
in jurisprudence, Kálmán Kulcsár Modernisation and Law (Budapest: Akadémiai Kiadó
1992) 282 pp.; Csaba Varga ‘Le droit en tant qu’ histoire’ & András Sajó ‘L’industrie d’État
du changement et l’effort stabilisateur du droit’ in La modernisation du droit réd. Radomir
Lukiè (Beograd 1990), pp. 13–24 & 33–49 [Académie Serbe des Sciences et des Arts:
Colloques scientifiques LII, Classe des Sciences sociales 11], as well as, by the author, ‘The
Law and its Limits’ Acta Juridica Academiae Scientiarum Hungaricae 34 (1992) 1–2, pp.
49–56 & Indian Socio-Legal Journal [Jaipur] 25 (1999) 1–2, pp. 129–134.
45 As an early recognition, cf., e.g., Diarmuid Rossa Phelan »It’s God we Ought to Crucify«
(Florence: European University Institute 1992) iv + 117 pp. [EUI Working Paper: Law
92/33].

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philosophical indoctrination by MARXism;46 yet looking at presently


felt global trends, we cannot rule out the chance that a direction
determined for us from the outset may too, in some unhoped future,
be valued as a perfection of the democratic principle.
History seems to be accelerating. We could experience the
dramatic change (although not changeover) between “us” and
“them” one and a half decades ago. In our world becoming a global
market, everyone and everything can turn to be a fate and prey to
the other. In the time of ARNOLD TOYNBEE, the paradigm of
challenge and response could be demonstrated by the practice of
minor communities. Today, however, all segments of the global
village takes part (even if unintentionally) in the process of a
continuous give-and-get. However, our history has not yet ended. It
seems—and the last quote of Failed Crusade reminds us of this
too—that its actors (alter egos and their mutants) remain for long
decisive actors of the beginning millennium.

46 Cf., by the author, Lectures on the Paradigms of Legal Thinking (Budapest: Akadémiai
Kiadó 1999), p. 104, note 5.

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“RADICAL EVIL” ON TRIAL*


CARLOS SANTIAGO NINO, professor of legal philosophy in
Buenos Aires and author of books on the philosophy of rights and
liberal criminal theory, spent the 1980s as an advocate of the civil
resistance against the regime of generals, then as a special advisor
to President ALFONSÍN especially in matters of facing the past. His
writings from this early time, moderate and responsibly balanced,
yet definitely raising the dilemmas of historical justice, provoked a
storm among his one-time friends from Yale Law School,
protagonists of the abstract protection of rights.1 NINO might have
therefore felt the necessity of a summation (to be taken by us also
as a posthumous message), borrowing IMMANUEL KANT’s moral
philosophical term (re-formulated by HANNAH ARENDT in a
symbolic sense) for its title.2 The book may provide some
orientation in the prolific debate between the principled stand of
legal incompetence3 and the one extending protection to victims of

* In its first version, in ‘A »gyökeresen gonosz« a jog mérlegén’ Magyar Jog 49 (2002.
június) 6, pp. 332–337. This original publication was accompanied by an Editorial Board
comment, authored by János Zlinszky, ‘Néhány kiegészítõ gondolat a »gyökeresen gonosz«
mérlegeléséhez’ [Some additional ideas to considering the »radical evil«], p. 338.
1 Cf., by Carlos Santiago Nino, ‘The Human Rights Policy of the Argentine Constitutional
Government: A Reply’ Yale Journal of International Law 11 (1985) 1, pp. 217–230, ‘The
Duty to Prosecute Past Abuses of Human Rights Put into Context: The Case of Argentina’
Yale Law Journal 100 (1991), pp. 2619 et seq. [commented upon by Diane F. Orentlicher ‘A
Reply to Professor Nino’ ibid., pp. 2641 et seq.], as well as ‘When Just Punishment is
Impossible’ in Truth and Justice The Delicate Balance: The Documentation of Prior Regimes
and Individual Rights (Budapest: CEU Budapest College Legal Studies Program: The
Institute for Constitutional and Legislative Policy 1993), pp. 67–74 [Working Paper 1].
2 Carlos Santiago Nino Radical Evil on Trial (New Haven & London: Yale University Press
1996) xii + 221 pp.
3 E.g., Samuel P. Huntington The Third Wave Democratization in the Late Twentieth Century
(Norman & London: University of Oklahoma Press 1991) xvii + 366 pp. and Bruce
Ackermann The Future of Liberal Revolution (New Haven & London: Yale University Press
1992) viii + 152 pp. I was somewhat startled by the unanimity with which renowned
scholars (ranging from the one-time Vice-President of the Spanish Constitutional Court to
the acting Foreign Minister of Poland) still advocated, without further ado, the Spanish way
to be adopted as a master pattern by the huge Central & Eastern European region
(conquered by a foreign army and kept in tight check through puppet governments) at a
recent academic event, proposing a definite break with the past without having ever faced
it, that is, total and mutual oblivion, equalling to amnesia. It appeared only from the

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abuses of rights as well.4 On their last meeting in Latin America,


Professor OWEN FISS of Yale was given the manuscript for preparing
it for publication, and eventually he also edited it subsequent to the
author’s death. This is a magisterial work by a great mind, by far
not critically exploited ever since,5 although this very contribution
was among the first to raise the question having become topical
again, after the end-of-the-millennium collapse of contemporary
dictatorships, recalling the spirit of the Nuremberg and Tokyo trials
in facing kinds of state-organised genocide: what is to be done, if
at all, with those representatives of state power who had
degenerated to perpetrating crimes and abuses of human rights?
Early in pondering the availability of an honest response,6 he
became one of the first who went on unnoticed, eventually crowded

concluding word by the President of the Open Society Foundation that the organisers
considered administration of justice and democracy building not in terms of synonymity or
mutual complementation but as concepts eventually neutralising, moreover excluding, one
another. Michel Rosenfeld, Luis López Guerra, Bronisław Geremek, Aryeh Neier (et al.) in
‘Conference on Peaceful Transition to Constitutional Democracy: Jacob Burns Institute for
Advanced Legal Studies, April 8, 1997’ in Cardozo Law Review 19 (July 1998) 6, pp.
1891–1985.
4 E.g., Alejandro M. Garro ‘Nine Years of Transition to Democracy in Argentina: Partial
Failure or Qualified Success?’ Columbia Journal of Transnational Law 31 (1993), pp. 1 et
seq. and Faime Malamud-Goti ‘Punishing Human Rights Abuses in Fledgling Democracies:
The Case of Argentina’ in Impunity and Human Rights in International Law and Practice
ed. Naomi Roht-Arriaza (New York: Oxford University Press 1995), pp. 165 et seq.
5 For reviews, see Conceptión Gimena Presa in Droit et Société (1998), No. 38, pp. 145–149
and Juan A. Millán in The American Journal of International Law 93 (1999), pp. 548–551.
For notices, see Marcus Faro de Castro in The Law and Politics Book Review VII (1997) 6,
pp. 262–265, Jean Belhhe Elshlain in Political Theory XXVI (1998) 3, 419–422, Drolay
Jones in Ethics and Jal’s Affairs XII (1998), pp. 227–228, Wilber A. Chaffee in Hispanic
American Historical Review LXXX (2000) 1, pp. 217-218 and Joseph Jupine & Gretchen
Helmke in Comparative Political Studies 34 (2002) 2, pp. 120–126, as well as Anthony
Pereira in The Americas [A Quarterly Review of Inter-American Cultural History] 54
(January 1998) 3 and Dorothy V. Jones in Ethics & International Affairs 12 (1998) and also
Sonia Cardenas in Latin American Research Review 35 (2000) 2.
6 Having spent two semesters as an American Council of Learned Societies fellow at Yale
Law School in 1987 to 1988, I had the opportunity to get acquainted with Professor NINO,
then visiting to lecture there. Subsequently, he regularly mailed me press cuttings on
attempts in Argentina to come to terms with the past. Later on, serving as a Political Adviser
to the Prime Minister in the first freely elected government of Hungary, I turned to Professor
NINO from 1990 on, asking for background literature—and having as reply only news about
his impaired health, accompanied by a few documents, as remembered in his book (p. 24).

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out of the professional debate of the master minds of our new


civilisation heralding the mainstream trend of “constitutional
revolution”, rich in logical ideas but imbued with practical
irresponsibility, deduced from principles and hardly harmonised
with responsive compromises to truths, suffered through by very
lives of generations.

A. Historical Background
Surveying pieces of experience gathered from mid-20th
century historical scenes, the first part illustrates the actual
purports of the challenge with factors of failure or success named.
In Germany, the Nuremberg trials might have hardly been
deemed successful by the then prevailing public opinion. The
allegation according to which National Socialism was a good idea
though badly implemented was found to be correct by 53% of the
German population before 1946 and by 40% in 1946. However, an
increase in support followed, with 53% agreeing to it in 1947 and
with 55,5% in 1948. Later on, by own jurisdiction, German courts
imposed less than 100 life sentences and less than 300
imprisonments between 1959 and 1969, and 157 life sentences
(out of 6000 convictions) between 1970 and 1982—as contrasted
to the approximately 26,000 executions during the HITLERite
regime (p. 97).8
In Austria, a governmental decree addressed those strongly
and weakly implicated in the regime. Former Gestapo and SS
members, anyone honoured by the party and/or having financially
benefited from the regime had to face severe punishment. The rest
had to face mostly a loss of public functions and homes. Half of the
judges were replaced or not reappointed, with criminal procedures
instituted against many. All in all, people’s tribunals proceeded
7 Cf. John H. Herz ‘Denazification and Related Policies’ in From Dictatorship to Democracy
Coping with the Legacies of Authoritarianism and Totalitarianism, ed. John H. Herz
(Westport, Conn.: Greenwood 1982), p. 20.
8 Adalbert Rückert—The Investigation of Nazi Crimes 1945–1978: A Documentation
(Hamden, Conn.: Achron Book 1980), 145 pp. and especially at 117—knows from official
data by the Ministry of Justice about 85,802 cases heard by German judicial fora between 8
May 1945 and 31 December 1978, among which 6440 were concluded finally. These
included 12 death and 156 life sentences, 114 fines and one case remitted to a juvenile
court.

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against a total of 17,500 people, 43 of which ended with capital


sentences, with 29 executed. Nevertheless, before the elections in
1949 an amnesty was granted for those who had only been weakly
implicated, and everyone blamed exclusively for having adhered to
the party was exonerated by 1957 (p. 109).
In Italy, following the cease-fire concluded by PIETRO
BADOGLIO, a series of decrees were passed to conduct purge and on
principles for the prosecution as well as to appoint Count CARLO
SFORZA as the High Commissioner for Defascisation. The chances
of prosecution were further strengthened in 1944 by some vague
definitions of crimes (as the author remarks, with the aim to
“hitting high and forgiving below”) and by re-introducing the old
penal code, once annulled by the Fascists. However, in the long
run, judicialisation turned into a fiasco; the High Commissioner’s
Office was dissolved later on; and the Minister of Justice had
finally to announce an amnesty. It serves as a bitter piece of
experience that private revenge offered itself to be the only way
having worked at all, targeting officially 1732 lives (according to
neo-fascists, 3,400,000, with literature estimates of around
30,000) (pp. 10–1110).
In France, treason was re-defined in § 75 of the Code pénal
with a retroactive effect in so broad terms that practically everyone
not having expressly adhered to CHARLES DE GAULLE or joined the
armed resistance could have been accused. A bit later, the facts
that may constitute a case of collaboration in penal law were also
re-defined retroactively, rendering even indirect moral support of
the Vichy-regime liable to prosecution. As the third measure, a
specific crime called “national indignity” was ex post facto defined
so as to include any participation, production or distribution of
propaganda, membership in either the Commissariat for Jewish
Affairs or any organisation supporting collaboration. All in all,
120,000 to 150,000 internments were ordered administratively and
200,000 indictments took place with 100,000 sentences and
65,000 condemnations, as a result of which—until the amnesty in

9 Cf. Frederick C. Engelmann ‘How Austria has Coped with Two Dictatorial Legacies’ in
From Dictatorship to Democracy [note 7], p. 144.
10 Cf. Giuseppe DiPalma ‘Italy: Is there a Legacy and is it Fascist?’ in ibid., pp. 119 et seq.

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1953—899 out of 7000 death sentences were executed, 2750


convicts were sentenced to life imprisonment and 13,000 to forced
labour. In addition and mostly in the initial times, deliberately held
ex-lex, at least 40,000 people were murdered as collaborators,
mostly within kinds of private revenge either organised by left-wing
groups or carried out spontaneously by the mob (pp. 11–1211).
In Belgium, the Supreme Court declared all the orders by
the exile government to be valid. In terms of them, approximately
400,000 persons (7% of the population) had to face prospects of
trial, with tens of thousands actually condemned for collaboration.
Its ex post facto broad formulation was also to cover those 60,000
having volunteered to work in Germany, so the socialist government
had to issue an explanatory order in 1945 requiring additional
proof of intent to help the German war machine, until the charges
against the workers were finally all dropped (pp. 12–13).
In Japan, 5500 proceedings were initiated within the
personal competence of the Supreme Commander of the Allied
Powers (with the exclusion of acts committed by the Japanese to the
injury of the Japanese). Altogether, these resulted in 900 capital
sentences and 3500 imprisonments, less than 6000 removals from
office and special military proceedings against further 28 soldiers.
From among the latter, 7 were concluded with death sentences, 16
with life sentences and 2 with imprisonment until November 1948.
However, these trials had been received rather dubiously: seen as
the issue of the victor’s justice, the Japanese eventually placed the
ashes of the seven executed into a memorial urn, moreover, later on
also erected a state monument above it in 1959 with the laudatory
inscription “For the seven patriots”. One of those convicted for war
crime became even a foreign minister later. Then, by 1950, all the
war criminals were freed and exonerated (pp. 13–1412).
In Spain, after more than 200,000 died in the prisons of the
regime of FRANCISCO FRANCO between 1939 and 1942, Prime
Minister ADOLFO SÚAREZ promised not to purge, while the
opposition urged an amnesty for the so-called dissidents and

11 Cf. Roy C. Macridis ‘France: From Vichy to the Fourth Republic‘ in ibid., pp. 169 et seq.
12 Cf. Arthur E. Tiedemann ‘Japan Sheds Dictatorship’ in ibid., pp. 184 et seq.

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terrorists. Finally, in October 1977, SÚAREZ had to announce a


general amnesty for all politically motivated crimes (pp. 16–1713).
In Portugal, in 1976 the constitutional president, General
ANTONIO RAMALHO EANES and Prime Minister MARIO SOARES
initiated purges and expulsions and even imprisonments against
some leaders held responsible, yet the unfolding sharp political
controversies had practically blocked any actual progress (pp.
17–18).
In Greece, in response to the soft measures of the interim
government of CONSTANTINE KARAMANLIS, popular actions led to the
declaration in a specific decree that legal offences committed
during the dictatorship would never be favoured by an amnesty. A
coup followed in reaction, but the government arrested the involved
military leaders under the charge of high treason. Finally, in 1975
a parliamentary declaration manifested with retroactive force that
the crimes of the dictatorship would be exempt of prescription.
Proceedings were instituted against 18 former leaders, with
governmental intervention subsequently reducing all the imposed
death sentences to life sentences. During the coming time, further
100 to 400 proceedings were initiated under popular pressure (pp.
18–2014).

B. Normative Dimensions
Political, moral and legal considerations encouraging or
discouraging trials in facing the past instances of “radical evil” are
overviewed in the second part.

a) Political Aspects Within the range of political aspects


(para. 3), the author criticises the claim according to which any
facing of the past amounts to either a limitation of constitutionality
or mere injustice. He argues just to the contrary. For the author

13 Cf. Julian Santamaría ‘Transición controlada y dificultades de consolidación: El ejemplo


español’ in Transición a la democracia en el sur de Europa y America Latina ed. Julian
Santamaría (Madrid: Centro de Investigaciones Sociologicas 1982), pp. 387 et seq. In
broader contexts, cf. also Victor Pérez-Díaz Spain at the Crossroads Civil Society, Politics,
and the Rule of Law (Cambridge, Mass.: Harvard University Press 1999) x + 214 pp.
14 Cf. Harry J. Psomiades ‘Greece: From the Colonels’ Rule to Democracy’ in From
Dictatorship to Democracy [note 7], pp. 257 et seq.

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substantiates why this is exactly the fulfilment of lawful


expectations through which any constitutional trust can be founded
and reinforced at all.

“[T]rials for human rights violations—he


stresses—may be much closer to what ACKERMAN
labels »constitutional moments«15 than many attempts
at formal or informal constitutional reforms.” (p. 131)
For—he continues—“The result of […] the
educative effect of the trials [...] is a process of
collective deliberation that [...], despite all the
tensions and bitterness, will facilitate a convergence
around certain basic values or create, in RONALD
DWORKIN’s terms, a »community of principles«,16 so
vital for democracy.” (p. 133)

Both the diffusion of responsibility through society and the


proper dissociation of the victims (with retributive feelings among
society at large) may have a crucial role in this respect. All this
can, at times, easily result from the logic of events themselves. We
have known, after all, from historical examples taken from World
War II and its aftermath that while the Germans and Austrians
considered their victims as aliens, the French and the Belgians
circumscribed and separated the perpetrators as collaborationists
from the rest of society after the end of the war. The State of Israel
identified itself, for obvious reasons, with the victims and
dissociated itself absolutely from the perpetrators. As far as the
Argentineans are concerned, they isolated those responsible from
the common people first as subversive elements and, then, as those
uniformed. In contrast, writer and resistance activist, then president
of the Czech Republic, VÁCLAV HAVEL asserted a counter-ideology
for the entire Central and Eastern European region, excluding any
calling to account even conceptually. According to him,

15 Bruce Ackerman We the People I–II (Cambridge, Ma.: Belknap Press of Harvard
University Press 1991).
16 Ronald Dworkin Law‘s Empire (Cambridge, Ma.: Harvard University Press 1986), pp.
208–224.

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“All of us are responsible, each to a different


degree, for keeping the machine running. None of us
is merely a victim of it, because all of us helped to
create it together.” (p. 201, note 11)

b) Moral Aspects As to conceivable moral aspects (para.


4), the author finds it relevant to reassert SHKLAR’s position:17
settling accounts (including Nuremberg) in terms of legalism as
ideology is thoroughly unlawful. It is justifiable only in terms of
legalism as social policy, using law as a political phenomenon.
After all, there are sufficient grounds for it, as administration of
justice sets a triple target here: (1) recording officially what
actually happened, (2) strengthening procedurally the rule of law,
and (3) appeasing the thirst for private revenge. In addition, trials
may (4) help victims to recover their self-respect as holders of legal
rights while also (5) promoting public deliberation in a unique
manner18 (pp. 146–147).
Hence, Professor NINO is of the opinion that, from a moral
point of view, settling accounts raises no particular problems at all.
He summarises his stand as follows, taking into consideration also
the exposition of NAGEL:19

“In the end, I believe that trials for massive


human rights violations can be justified on
preventionist grounds provided the trials will counter
those cultural patterns and the social trends that
provide fertile ground for radical evil.” (pp. 145–146)

c) Legal Aspects As far as legal aspects are concerned


(para. 5), the author examines the issue of legality, followed by the
excuses that can be brought forward at all.

17 Cf. Judith N. Shklar Legalism Law, Morals, and Political Trials (Cambridge, Ma.: Harvard
University Press 1986) xiv + 246 pp.
18 The latter two have been connected to the previous ones by Jaime Malamud Goti
‘Punishment and a Rights-based Democracy’ Criminal Justice Ethics 10 (1991) 2, pp. 3–13.
19 In Lawrence Weschler A Miracle, A Universe Settling Accounts with Torturers (New York:
Pantheon 1990), quoted by Nino, pp. 145–146.

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According to his basic position, the usual discussion of the


entire issue is mostly biased by a conceptual misunderstanding, for
“what is really at stake is not the option of either law or morality
but the confrontation between different moral values” (p. 157).
Deciding the option of whether or not a case is prosecutable, not
even the eventual lack of a previously posited law fulfilling the
requirements of nulla poena sine lege and nullum crimen sine lege20
can be taken as relevant, only provided that there is some adequate
prior regulation available.

“As soon as the validity of the laws authorizing


these acts, like the anti-Semitic Nuremberg laws of
the Nazi regime is shaken, the atrocities are clearly
crimes according to the previous layer of valid laws!
[...] These deeds should have been judged according
to the crisp rules of the criminal code that was in
force before being modified by the totalitarian regime,
which legitimized the human rights violations. The
deeds should be tried, to the extent possible, under
the substantive and procedural laws, and by the
judges provided by them, that would have been in
place at the time of the deeds if it were not for the
totalitarian enactments endorsing the abuses. This
approach was followed for the most part in Greece
and Argentina and could be applied in the former
communist countries in Eastern Europe. [...] The laws
authorizing the abuses should be held void ex nihilo,
for their undemocratic origin allows an examination of
the obnoxiousness of their content.” (p. 163)

Legal defence may possibly be founded upon one or more


of the following claims: (1) lack of agency; (2) necessity; (3) lawful
defence or self-defence, or state of war; (4) due obedience; (5)

20 For instance, Telford Taylor—The Anatomy of the Nuremberg Trials A Personal Memoir
(New York: Knopf 1992), p. 635—, back at the time when the Nuremberg trials were in a
preparatory stage, strongly opposed the idea of justifying them through the Hague convention
as he did not accept it as a penal code to satisfy the nullum crimen sine lege prohibition.

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statute of limitations; and finally, (6) the selectivity of punishment.


It should be borne in mind, however, that the author does not find
any of them to be an unsurpassable obstacle, excluding the judicial
settling of accounts from the very beginning. What they may imply
is rather a reference for the lawyerly rhetoric to be rejected ab ovo
as a mere pretext.
Accordingly, ad (1), reference to lac k o f age n c y cannot
raise any difficulties, as the chain of commanding and ordering is
in principle unbroken and any reference to it equals in practice to
doubting why to call to account. For example,

“the decision convicting some of the Argentine


junta members [...] held each of the commanders
responsible for the deeds of his subordinates without
limiting or undermining the responsibility of the
latter.” (pp. 166–167)

Ad (2), revoking n e c e s s i t y may in itself sound


conclusively. However, its judicial proof may scarcely be successful
in any particular situation, for

“The defense of necessity requires three


conditions: (i) balance: that the evil prevented be
greater than the evil caused; (ii) efficacy: that the
necessary action effectively prevents the expected
evil; and (iii) economy: that there be no other means
less harmful for preventing the expected evil in an at
least equally efficacious way.” (p. 171)

Ad (3), invoking lawful defense or self- defense, or


state of war, is not much use for excuse either. If there is no
specific law available that provides such an entitlement in a
democratically framed and constitutionally defendable way, its
mere lack does by far not necessarily implicate the legality of the
deed debated.21 Otherwise speaking, referring to any of them has

21 According to Carlos E. Alchourrón & Eugenio Bulygin Normative Systems (Wien & New
York: Springer 1971), pp. 119 et seq. [Library of Exact Philosophy 5], law is anything but a

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no proper content, foundation or reserve in a legally relevant


context.
Ad (4), referring to due obedience or to the obligation
of the subordinate can only be based on a misunderstanding.

“Insofar as due obedience is a derivative


excuse based on duress or mistake, it can—the author
expounds—be regulated retroactively without
affecting the principle against retroactivity of the
criminal law. Because excuses are irrelevant to the
lawfulness of an act, previous knowledge of such
excuses should not be a prerequisite to their
applicability vis-à-vis those acts.” (pp. 181–182)

Ad (5), s t a t u t e o f l i m i t a t i o n s is again an easily


transcendable pseudo-object as the objection itself, its weight and
most of its pre-requisites make it of just a rhetorical use. In the
light of NINO’s reasoning, albeit the personality of the perpetrator
may have in the meantime changed, with easy provability elapsed
and old emotions stormed anew,

“These arguments in favor of a statute of


limitations are weighty, but those who have committed

closed system. Consequently, the lack of prohibition can imply permission only if an
explanatory definition is also added: “That means that the legality of an act is not a question
of logic but rather depends on evaluative questions which the courts can hardly avoid.” (p.
178) Well, I think this conclusion to be worth of consideration although it is obviously a
result of the American constitutionalising way of argumentation. Nonetheless, I have ever
been of the opinion—Csaba Varga ‘Do we have the Right to Judge the Past?’ Rechtstheorie
23 (1992) 3, pp. 396–404 {reprinted in his Transition to Rule of Law On the Democratic
Transformation in Hungary (Budapest: ELTE Project on “Comparative Legal Cultures”
1995) 190 pp. [Philosophiae Iuris], pp. 129–135, para. 6 at 135}—that “what is not
forbidden is permitted in law.”—conceding that forbiddance can also be achieved by
principles and other standards and kinds of guidance as well. It is to be noted that I have
suggested exactly this in a paper—Csaba Varga ‘Law and its Approach as a System’ Acta
Juridica Academiae Scientiarum Hungaricae 21 (1979) 3–4, pp. 295–319 {and reprinted in
Informatica e Diritto VII (1981) 2–3, pp. 177–199}—, referred to for the re-foundation of
the consciousness of rights in opposition to the prevailing Socialist regime by László Sólyom
‘Mit szabad és mit nem? Capriccio polgári jogi témákra’ [What is permitted and what is not?
Capriccio for civil law topics] Valóság (1985) 8, pp. 12–24, a key stand taken then, in an
early phase of some coming transition to further liberalisation.

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criminal acts should not be allowed to profit from the


fact that they, or the regime to which they belong,
impede justice. Therefore, legal rules that suspend
the statute of limitations when prosecutions are
impossible also appear attractive. This may be
accomplished by retroactively extending the statute
or declaring it to have been suspended during the
dictatorship. Initially, this seems to clash with the
principle which prohibits the retroactivity of criminal
legislation, and this would be illegitimate under a
liberal system of criminal law. This appearance,
however, is deceptive. The prohibition of retroactive
criminal laws is linked to the requirement that one
must consent to assume the liability of punishment.
[...] But consent is tied only to knowledge of those
circumstances which are relevant to the unlawfulness
of the act—the fact that this is one of the acts that the
law seeks to prevent by way of punishment—and not
to knowledge of other factual or normative conditions
for actually imposing punishment. The statue of
limitations is not relevant to the legality of the act.
Prevention by way of punishment is in no way
qualified by the delineation of a term during which
the state’s claim to punishment would expire. [...]
People should decide whether or not to commit an act
according to norms of unlawfulness and consequently
run the risk of relying on factors which are irrelevant
to such norms. If somebody commits a crime because
he hopes that before he is caught the statute of
limitations will run out, he must bear the burden of
relying on factors alien to the legality of the act, just
like the person who hopes that he will not be
punished because all the prisons in the country will
burn. Therefore, I do not believe that the principle
prohibiting retroactive criminal legislation is an
obstacle to extending or abolishing statutes of
limitations for massive human rights abuses. The only

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issue that may legitimately arise is whether it is just


to punish somebody for acts done in the distant past
when that person has changed significantly in the
interim” (pp. 182–183).22

Ad (6), the selectivity of punishment (with the ways of


how to select for prosecution from among those involved) cannot
erect any major obstacle either, for

“nobody has a right that certain persons be


punished and, consequently, nobody has a right not to
be punished because others are not. Punishment does
not call for equal treatment because it is not a benefit
which is the object of positive rights. Punishment is
the object of positive goals and only of negative
rights. Punishment may therefore be selectively
relinquished through persecutorial discretion,
amnesties, or pardons without raising claims of equal
treatment.23 This selectivity, of course, should not be
arbitrary but rather aimed at efficiently achieving
legitimate goals.” (p. 183)

Let us add one more conceivable defense, notably (7), the act
of self-amnesty, noticed by just one of his reviewers, as follows:

“persons should not benefit from their own


wrongs—that is, those who have contributed to the
suspension of democratically enacted laws that made

22 E.g., Alain Laquièze ‘Le débat de 1964 sur l’imprescriptibilité des crimes contre
l’humanité’ Droits (2000), No. 31, pp. 18–40, especially at 25 declares—inspired by Stefan
Glaser in Le Monde (December 17, 1964), p. 10: “Prescription […] does imply a benefit but
not constitute a right.”—that “Prescription is not a fundamental right.” In terms of practice,
Naomi Roht-Arriaza ‘Special Problems of a Duty to Prosecute: Derogation, Amnesties,
Statutes of Limitation, and Superior Orders’ in Impunity and Human Rights…[note 4], pp.
57–70, identifies the disregard of limitations for the period of the practical denial of access
to justice in the case initiated by the United States against an Argentinean general having
fled to its territory in Forti v. Suarez-Mason, 672 F. Supp. 1531, 1550 (N.D. Cal. 1988).
23 Retributionism is self-destroying from the very start as it can only lead to the utterly
unprincipled exemption of “Everyone has to be punished, so no one is” (p. 183).

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human rights abuses criminal acts should not benefit


from that decision by successfully claiming that no
law criminalized their conduct or that non-democratic
laws sanctioned or pardoned such acts. This
interpretation is consistent with the current trend
under international law—as evidenced by reports of
the UN Human Rights Committees and the Inter-
American Commission on Human Rights to the effect
that domestic laws, such as self-amnesties, that grant
impunity to perpetrators of abuses should be denied
legitimacy.”24

After all, there are already some signs of a shift of opinion in


the last decade of the international community about the dilemma
of whether or not to face past injustices in law, in which way and
upon the initiative of whom and with which distribution of its costs
and burdens of proof in their resolution.25 The dogmatically
merciless indifference of human rights activism towards past
victims by revoking the perpetrators’ rights may have in the
meantime corroded its very existential basis, compelling human
rights watch organisations to re-consider why the memory of the
unburied dead still keeps haunting after decades and why
unhealed wounds are opened up again.
While earlier, those professionally committed to the cause of
human rights were already suspicious of a limitation of rights
whenever a posterior government attempted to examine past legal
offences—thereby breaking the continuity of a prior dictatorship
smoothly transiting to an arrangement based upon the rule of law—,
now they are almost inclined to impute the downright obligation to
the succeeding government to face in law all the major injustices
committed by the prior dictatorship. If now they hesitate at all, they
do so rather in selecting the justifiable means, whether or not also

24 Millán [note 5], p. 549.


25 Cf. Kiáltás gyakorlatiasságért a jogállami átmenetben [A call for practicality in the
transition to rule of law] ed. Csaba Varga (Budapest: [AkaPrint] 1998), part on »A múlt
meghaladása« [Facing the past], pp. 73–117 [A Windsor Klub könyvei II] as well as Coming
to Terms with the Past under the Rule of Law The German and the Czech Models, ed. Csaba
Varga (Budapest 1994) xxvii + 178 pp. [Windsor Klub].

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involving the judicial path or any other reaction considered


satisfactory there and then in the actual case. For instance, the
suggestion of DIANE F. ORENTLICHER fits in well with this change of
attitude. According to her, the prosecution of crimes committed and
left unpunished for political reasons by the past regime should be
made a duty of the successor state as prescribed formally by
international law. This is what even NINO finds an exaggeration,
suggesting a more moderate solution which may well accord to his
own sense of responsibility. He opts for international proceedings
under international law, conducted by and upon the responsibility
of an international actor, or, at least, for domestic attempt at
settlement and/or proceedings as supported by international fora.
For this is the proper way to prevent a situation in which the
domestic democracy-building by a successor-state might get
disadvantaged or simply blocked against a formal international
obligation, providing for administration of justice in previously
codified forms and procedure (pp. 188–189).

The posthumous message of NINO’ stand in such a sensitive


topic is exemplary for the union of social and lawyerly
responsibility. In his principles and theorising, Professor CARLOS
SANTIAGO NINO was drawing from Western liberal traditions, and in
his practical responses, he searched for a path through laborious
work to reach eventually optimum compromises within the bounds
of justifiability. His oeuvre is all along imbued with the pathos of
taking seriously the instrumental values to be implemented through
legal mediation—aware of the priority of practical problem-solving
that can only be the result of careful pondering, sensing and
balancing, convinced that the lawyer must not act as a sales agent
or hawker, siding with any limiting position in conflicts of values
and/or major interests without own sober assessment. Therefore, he
is also aware of the fact that the law’s instrumentality is by far
richer than any particular procedural formula actually applied in
everyday routine.

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Or, law is a complex (and never fully exploited) aggregate of


instrumental values, of working principles as well as of ways of (re-)
establishing coherences and inferences (linkages and connections,
imputations and ascriptions)—in brief, paths and ways, forms and
modes of procedure—, which we (by mentally and also formally
confronting available kinds of reasoning and argumentation in
substantiation of the final decision) both serve and reproduce by
each act of procedure through our intellectual operations and
reconstructions.
Accordingly, practical challenge and conceivable legal
response are not simply meant to qualify (by judging, criticising or
even destroying) each other. Discourses in law are to strengthen
them to dialogue and encounter within the (formally perfected but
never exhaustively actualised) bounds of social acceptability and
legal justifiability, to be ascertained and re-defined at any time in
socio-legal continuity, taken—instead of strict formalism—in an
exclusively widened macro-sociological (cultural and
civilisational) sense.

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RULE OF LAW
BETWEEN THE SCYLLA OF
IMPORTED PATTERNS AND
THE CHARYBDIS OF
ACTUAL REALISATIONS
(The Experience of Lithuania)*
Transitology Questioned Having recovered from the trauma
of surviving Soviet imperial socialism and compelled to open up
new ways in independent state-building in parallel with the
readjustment of what is left as local legal arrangement to common
European standards, nations of Central and Eastern Europe all
have faced the same dilemma: how can they manage international
encouragement to adopt foreign patterns in promise of ready-made
routes with immediate success, in a way also promoting the paths
of organic development, relying on own resources and potentialities
that can only be gained from tradition? Is it feasible at all to rush

* In its first version, Acta Juridica Hungarica 46 (2005) 1–2, pp. 1–11 &
<http://www.akademiai.com/media/37knultrmmv9b6ykpee7/contributions/m/3/2/9/m3296
v37841w54h0.pdf> & <http://www.akademiai.com/content/m3296v37841w54h0/fulltext.
pdf> and Rechtstheorie 37 (2006) 3, pp. 349–359, as well as, as commissioned by Nagoya
CALE for 2004, in Hungary’s Legal Assistance Experiences in the Age of Globalization ed.
Mamoru Sadakata (Nagoya: Nagoya University Graduate School of Law Center for Asian
Legal Exchange 2006), pp. 195–203, under the common title I gave to my own project as
‘Transition to Rule of Law: A Philosophical Assessment of Challenges and Realisations in a
Historico-comparative Perspective’. As I promised in the research concept (p. 185), “No
wonder if the big patterning powers are scarcely generating critical approaches to the
transition process in the region as focussing on especially relatively small countries, the
chances of survival of which are felt to be so much at stake as to form them conscious enough
to ponder on expectations and realisations, chances of third roads and the pressure of forced
paths as well. The descriptive and theoretical literature of this category of countries seems
to be most promising to eventually lay the genuine foundations of competitive explanations
on what course has been more or less commonly taken in the region. All the working
hypotheses notwithstanding, one work will be selected out as representative of the various
dilemma outlined, concentrating as a prism in one complex unit the very compound
aggregate (with in-built elements in mutual tension and exclusion) of the expectations
towards, and timely fulfilment of, the perfected forms of some Transition to Rule of Law in
the region concerned.”

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forward by rapidly learning all the responses others elaborated


elsewhere at a past time? Or are they expected themselves to
become Sisyphus bearing his own way, at the price of suffering and
bitter disillusionment? The question was not raised by each
country individually as not much time was left for pondering in the
rapid drift of events. Anyhow, cost-free solutions adopted from
without may easily lead to adverse results far away from
expectations. By the time of awakening, however, posterior wisdom
may show that there is an alternative always available, even if its
practicability is not clear to those affected at the urgently given
moment.
One and a half decades after the collapse of the Soviet
empire we fully realise now how painful the fact is that each
country embarking on dramatic changes was completely left in
isolation to face its national renewal programme, drifted by
accidental circumstances. Neither the consciousness nor the
organisational framework of the mutual dependence of those
concerned was strong enough, and Moscow as the focus was this
time substituted by another centre of power, even less interested in
the target countries (each with proper peculiarities), which were
just awakening either in self-esteem or as a potential counter pole.1
In consequence, each country had to embark upon separate efforts
at reform, channelled by so-called open society agencies;2 however,
as we all know, improvisation is not likely to outcome products
worth of consolidation.
The early and total failure of the Hungarian efforts at coming
to terms with the past3 was only one among a few shocking
episodes. This alone might have made us realise that we should not

1 Cf., from the present author, ‘Failed Crusade: American Self-confidence, Russian
Catastrophe’ in the present volume.
2 See, e.g., Stephen Cohen Failed Crusade America and the Tragedy of Post-communist
Russia (New York: Norton 2000) 305 pp. and—as a by-admission—Stephen Holmes
‘Transitology’ London Review of Books 23 (19 April 2001) 8, pp. 32–35.
3 Cf., e.g., by the present author, Transition to Rule of Law On the Democratic
Transformation in Hungary (Budapest: ELTE “Comparative Legal Cultures” Project 1995)
190 pp. [Philosophiae Iuris], especially the part on »Coming to Terms with the Past«, pp.
119–155, Coming to Terms with the Past under the Rule of Law The German Model, ed.
Csaba Varga (Budapest 1994) xiii + 136 pp. [Windsor Klub] as well as ‘»Radical Evil« on
Trial’, also in the present volume.

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have attempted to respond to a considerably universal challenge


just on our own, and perhaps a genuine trans-national co-operation
might have evolved, had not been our initiative in Hungary too
early, even pioneering.

Lithuania A Lithuanian theoretical response4 will be


overviewed in the following. It is certainly not the earliest one as its
author may have learned from the experience of others.5 Yet it is
remarkably rational and systematic. For he reconsiders ancient
wisdoms in the light of our days’ ideals, and draws historical
lessons from his Lithuanian case study by responding to the shared
failures of our global new world.

4 Alfonsas Vaišvila Teisines valstybes koncepcija lietuvoje [The Lithuanian approach to rule of
law] (Vilnius: Litimo 2000) 647 pp. [with summaries: ‘Law-governed State and its Problems
of the Formation in Lithuania: The Outline of State Ideology’, pp. 611–631 and ‘Правовое
государство и проблеми его становления в Литве: Поиски государстенной
идеологии’, pp. 632–635]. Cf. also his Conception of the State Ruled by Law in Lithuania
(Summary of the research report presented for habilitation) (Vilnius 2001) 50 pp. [The Law
University of Lithuania] as well as—in multiplication—his ‘Rechtspersonalismus
(Zusammenfassung)’, ‘Die Rechtsaxiomatik oder das Modell der vier Axiome als inhaltliche
Grundlage des Rechtspersonalismus’, ‘Die geometrische Formel des Rechtes als des
mehrstelligen Prädikats’ and ‘Das Recht als Prozess (als das Werden)’. Chair holder for legal
philosophy at the Faculty of Jurisprudence of the Law [now: Mykolas Römeris] University at
Vilnius, Professor VAIŠVILA is author of a number of works covering Lithuanian history of
ideas, social compromise, liberalism, social-liberalism, tolerance, democracy, state of law
(with moral preconditions), statism as well as crime control. In result of this present survey,
he was commissioned by me to summarise his views especially through their philosophical
foundations. As to the outcome, see his ‘Legal Personalism: A Theory of the Subjective
Right’ in Ius unum, lex multiplex Liber Amicorum: Studia Z. Péteri dedicata (Studies in
Comparative Law, Theory of State and Legal Philosophy) ed. István H. Szilágyi & Máté
Paksy (Budapest: Szent István Társulat 2005), pp. 557–572 [Philosophiae Iuris /
Bibliotheca Iuridica: Libri amicorum 13].
5 As a summary of the debates in Poland, see Polskie dyskusje o państwie prawa Zarys
koncepcji państwa prawnego w polskiej literaturze politicznej i prawnej [Polish discussions
on the state of law: summary of the concepts of the state of law in the Polish political and
legal literature] red. Sławomira Wronkowska (Warszawa: Wydawnictwo Sejmowe 1995) 140
pp. Also cf. Kiáltás gyakorlatiasságért a jogállami átmenetben [A call for practicality in the
transition to rule of law] ed. Csaba Varga (Budapest: [AkaPrint] 1998) 122 pp. [A Windsor
Klub könyvei II].

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(Ideal: Law and Balance) The ideal of the Rule of Law—


formulated also in the preamble of the Constitution of Lithuania
(1992) after she has returned to the path of independent state-
building by 19906—indicates a recognition according to which the
unlimitedness of observing any law in a Rechtsstaat can be
restricted by the value-centredness of a rule of law, which value
shall be fully implemented by the principle of intervention of a
Sozialrechtsstaat when care for “strengthening those socially weak
and weakening the strong”7 is also at stake. Looking back in
history, Lithuanians may now realise that their ancestors in the
16th to 17th centuries8 had already separated—in their search for
a “well-organised” and “organic” state—law [ius] from the laws
[lex] and demanded law to be right (by serving everyone’s good
with sound reason), moreover, that the presumed original freedom
which may have led to their first integrative social contract could
not entitle to anarchy but only prepare for balancing. The
Lithuanian Statutes (1529, 1566 and 1588) ensured an extremely
all-covering rule of law for the nobility. This was even further
restricted by the Polish liberum veto.9 After all, the disintegration of
the ruler’s power and responsibility could only result in either the
tyranny of nobles (as beneficiaries) against everyone or the coming
of foreigners to rule (free of any limitation whatsoever) with at least
some promise of order. Well, as known from history, both
alternatives did subsequently materialise in Lithuania.
Reconsideration is imperative for all concerned, only if in
order to avoid the traps of the past. One has to be careful to escape

6 “The Lithuanian nation strives for an open, just and harmonious civil society and a state
ruled by law.” The expression ‘state of law’ was first used in Lithuanian literature by
MYKOLAS CIMKAUSKAS (1922) and described historically and systemically by MYKOLAS
RÖMERIS—‘Teisines valstybes organizacija’ in Lietuvos universitetas 1927–1928 mokslo
metais (Kaunas 1928), pp. 6–31—, followed by their contemporaries as PETRAS LEONAS and
others.
7 Ekkehart Stein Staatsrecht 14., völlig neu bearb. Aufl. (Tübingen: Mohr 1993) xv + 497 pp.
8 E.g. JONAS CHONDZINSKIS, ALBERTAS GOŠTAUTAS, MYKOLAS LIETUVIS, PETRAS ROIZIJUS,
AUGUSTINAS ROTUNDAS, LEONAS SAPIEGA, PETRAS SKARGA, ANDRIUS VOLANAS.
9 Cf. Ladislas Konopczyński Le liberum veto Étude sur le développement du principe
majoritaire (Paris: Librairie Ancienne Honoré Champion & Varsovie, etc.: Librairie
Gebethner et Wolff 1930) 297 pp. [Institut d’Études slaves de l’Université de Paris,
Bibliothèque polonaise II].

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the temptation of any kind of dogmatism—foremost that of


absolutising universalisation—, even if some of the issues now
crop up in global proportions, as a consequence of the new role
assumed by the American foreign policy after the Cold War and the
Soviet might are over. The early 20th-century Lithuanian classic of
public law, MYKOLAS RÖMERIS already emphasised that the Rule of
Law is hardly more than a specifically disciplined ethos, only
conceivable as the direction of a constantly renewing ambition: it
never arrives at completion, for “it cannot be answered once and
for all”.10 Or, it is not even an external pattern to be simply followed
and implemented, for it is not of the kind to presume the
mechanically “obedient execution or imitation” of requirements
once stipulated by others.11 This is all the more remarkable now
when the course of globalisation, maximising the rule by rule of law
and human rights with a growing disregard to other considerations
and values, is about to stumble on disintegrating contradictions
and dysfunctions. While eliminating certain threats to human
rights, the state ruled by law—writes the author reviewed—
originates new ones immediately, which are inherent in the notion
of human rights itself,12 that is, in their abstract conceptualisation,
totally insensitive to their own social (pre)conditions, ways of
operation and consequences in the short as well as the long run.
The author inquires into the conditions of reaching states of
genuine balance upon the basis of reciprocity between law and
social solidarity, on the one hand, as well as between (with regards
to the openness of social order) full social consent and (with regards
to the openness of law and order) the inseparable unity of rights and
duties, on the other. He reminds that just as the downfall of the first
(1572–1795) and the second (1918–1926) Republic of Lithuania
was due to the over-limitation of the sovereign, exposing the country
to external despotism, what happens today is the liberalisation of
anti-sociality through the restriction of the executive power with
reference to abstract human rights.13

10 Römeris ‘Teisines valstybes organizacija’ [note 6], p. 6.


11 Vaišvila Conception of the State... [note 4], p. 11.
12 Ibid., p. 6.
13 Ibid., p. 12.

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Preliminary to raising any issue relating to the Rule of Law is


the assessment of the state of actual social conditions. For the
author, the acknowledgement of the priority of the human person
with inborn rights, taken as the source of his autonomy, as well as
the overwhelming social co-operation based on contracts and
mutual concessions together with the social majority’s active and
organised participation, are of equally utmost importance. In
contrast, what reality shows now are rather legal statism and the
exclusivity of the dominance of formal law. Even rule of law is
mostly conceived of as formal institutionalisation, mere dictate of
the law [lex]. However, until the Lithuanian Constitution (Article
109, Section 3) provides for the judges to proceed “exclusively
according to the laws”—instead of laws “and law [ius]” as he
claims—, no genuine division of powers can be achieved.

(Ideal: Rights Counterbalanced by Duties) Functionally, law


is based upon the unity of subjective rights and legal duties. Rights
cannot be but relative, otherwise they will degenerate into
aggressive privileges unavoidably. This mutual dependence arises
as part of the natural order from the natural state of humankind,
open to exchange equivalent services. Such an interconnection is
not anything made by the state. All that any statehood can do is to
make statements about. Law [ius] in a democratic society can
therefore only be built on a legal conception not reduced to mere
laws [lex]. In a democratic society, only such claims can be posited
in form of law that are in compliance with human rights, express
social agreement and formulate as legal imperatives only such
provisions whose realisation is also guaranteed by the state’s
instruments (i.e., to the extent of the state’s economic capacity and
their eventual approval by citizens) (ch. 4).
Or, the state is not in a position to met out justice or punish,
moreover, it is not even the state to deprive anyone of his/her
freedom. At the most, all a state can do is to officially establish the
new status of the rights of a person when it gets diminished by
his/her own action of rejecting the fulfilment of certain duties.
Consequently, neither capital punishment, nor its possible
abolishment is within the states’ but exclusively within the

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perpetrator’s discretion. Anyone who kills, by negating the right to


life of others, deprives himself of his right to his own life. The act
of the Lithuanian Constitutional Court—argues the author—,
having decided for the abolishment on 9 December 1998,
declaring the Article 105 of the Lithuanian Criminal Code to be
unconstitutional, can only be construed in that it either denied its
citizens their natural right to equality in reciprocity or pardoned for
the future in general terms on a legally unjustifiable basis
(unauthorised in citizens’ eyes, yet normatively). Moreover, not
even the failure of regulation can result in breaking up the
necessary balance between rights and duties or in impunishment,
because, otherwise, criminal aggression would be encouraged.
Therefore the formal, exhaustive and exclusive statutory definition
of crimes needs to be complemented by the availability of
judicial—casual—correction.14 Entering the 21st century, the
author perceives that the absolute prohibition of analogy in
criminal law may have fairly been motivated by past experience of
totalitarianism, on the one hand. On the other, he generalises—
stemming out from the data of 20th-century international criminal
practice, Anglo–American jurisprudence as well as continental
penalising trends—that the actual boundaries of today’s formally
absolute prohibition are becoming increasingly flexible under
contemporary well-balanced rule of law conditions (ch. 5).15

(Anything Except to Democracy in Outcome) According to


his vision, the prevalence of capital concentration with the split of
society to the rich and the poor has nowadays been generating a sui
generis type of authoritarianism-cum-totalitarianism under the
guise of total liberalism. Situations come about by threatening
effects in terms of which enlarging groups of addressees will have
to practically resign of their rights and legal rights-protection on
the command of sheer biological survival. The present degree of
14 For case law can only counterbalance the fact actualised by those cases proving that
legislation cannot be exhaustive, in order to ensure the universality of implementation of the
basic principles of criminal law. Ibid., p. 23.
15 Jörg Arnold ‘Prinzipien und Grundsätze im deutschen Strafrecht und im Entwurf des
Allgemeinen Teils des Litauischen Strafgesetzbuches’ Jurisprudencija [Vilnius] 9 (1998) 1,
pp. 62–74, in particular—using the expression ‘fließend’ when surveying the German
practice of Analogieverbot—on p. 68.

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actual poverty and defencelessness in Lithuania is already about to


genuinely erode the predisposition of the state. The shameful fact
that only 40 to 42 per cent of the officially known criminal acts are
actually prosecuted against can only mean that the other 60 to 58
per cent of national sovereignty relating to effective crime control
is lost. However, this other part should not benefit the criminals—
as is the case today—but the victims, either by providing them
efficient protection or by giving them back the right to protect
themselves against crime at least to a viable extent. It is little
wonder if in situations like this, citizens’ traditional confidence in
the state is withdrawn, only to be replaced, instead, either in their
own hands or in powers beyond this world. In 1996, only 25 per
cent of the Lithuanian population claimed they trusted their own
Parliament yet 74 per cent claimed that they trusted the Catholic
Church. After many decades of Soviet occupation, it is tragic to
recall that there was a time when power in Lithuania was seized by
foreigners with promise of order they provided against the tyranny
by Lithuanian nobles. Anyway, Lithuanian officials do ascertain
now that their justice system is hardly sufficiently operable today.
A criminal environment can grow to be effective enough to actually
deter injured parties and witnesses from taking part in the
administration of justice. Law is not a protective power any longer.
Legal proceeding may have lost any sense. Criminals have in fact
extended their control over law and order, practically depriving
society of the chance of legal protection, degrading citizens to
growingly becoming partners themselves to the very aggression
criminals are used to commit against them. It is the aggression by
criminal asociality that is eventually supported by an abstract
protection of human rights.
Is it possible that after a totalitarian past, democracy will
only arrive later on, when the present mixture of liberalism-cum-
authoritarianism will have been left behind? Is there any logic in
the actual course of history in that the former (Soviet-type) lack of
freedom is now getting compensated by immoderate, even asocial
(American-type) libertinism?16 What are the symptomatic
indicators here? According to the author, the weakness of a middle-

16 For the term, cf. Frank S. Meyer ‘Libertarianism and Libertinism?’ National Review
(1969).

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class in substantiation of democracy, the miserable state of


economy, the lack of chance for any genuine civil (civic) initiative,
the feeble self-assertivity of the populace (e.g., when all personal
bank-savings of Soviet times were frozen by the Parliament once
and for all on 19 July 1995, by a posterior and unilateral statutory
modification of the conditions of fulfilment of contractual
obligations laid down in the Article 471 of the Lithuanian Civil
Code), the want of high state officials’ respect for the law (e.g.,
when the President of the Republic or the Sejm [their Parliament]
may fail to observe their formal duties without any legal
consequences, or the state elite defines ad hoc measures when own
remuneration is at stake), as well as the undisturbed
misappropriation of public property (through commercial banks
and companies with a state share)—all these are among the first to
be considered.
Rule of Law is hardly imaginable without proper social and
psychological, ideological and constitutional foundations. As to the
current political experience in Lithuania, it calls for a stronger
presidency as well as for a parliament with more effectivity in
balancing. For what the constitutionalist RÖMERIS wrote once about
parliamentocracy as a mere theoretical potentiality three quarters
of a century ago had by now become everyday reality, until the last
election in October 2000 brake the continuation of Communists’
domination. In fact, pursuant to the Article 72, Sections 2–3, of the
Constitution, any bill can be—even repeatedly and without the
slightest alteration—passed by absolute majority, despite any veto
by the President of the State. So, nine protests by President
BRAZAUSKAS could be constitutionally ignored in 1997 without
paying the least attention to his motifs. As to historical antecedents,
the Article 51, Section 2, of their Constitution of 1928 followed the
American model by providing for a qualified two-third majority in
case a bill had been vetoed against. As fairly recalled, President
ROOSEVELT interposed official veto 631 times until the New Deal
could be implemented; moreover, Lithuania herself was in favour of
a strong presidency both in far-away and recent past.17 The
population still trusts significantly more even a weak president

17 De-stabilisation efforts were also made in 1922, at the dawn of the young republic, under
the pretext of stabilising the legal status of the Parliament.

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than a Parliament formed by random circumstances and, as the


case may be, sometimes tragically exposed to the play of mere
chance. This is clearly indicated by the contrasted support through
varying periods and circumstances notwithstanding:
President ALGIRDAS BRAZAUSKAS Parliament
December 1993 60,0 % 34,0 %
June 1996 20,0 % 14,0 %
President VALDAS ADAMKUS Parliament
June 1998 71,2 % 12,7 %
December 1998 76,4 % 13,4 %

Thus, there is a contradiction that can barely be eliminated


by means of mere rhetoric, namely, that while the country is
actually ruled by a power of a rather low esteem, the power
preponderably trusted by the nation is without almost any sensible
competence (ch. 8, para 2).18
Or, the exclusive way to, as well as standard and criterion of,
a “well-organised” and “organic” state now are on the final
analysis nothing but the “maintenance of comprehensive balance”
on each field of the entire social, political and legal set-up as the
exclusively available guarantee of political stability, social equality
and legal reciprocity.19

The partisan movement Žalioji rinktine, continuing the fight against the Soviet occupying
powers in Eastern Lithuania, declared in 1945: “We want a presidential republic, similar to
the one of the United States of America, with a powerful president.” [V. Kuroèkos apklausos
protokolas [archives manuscript], p. 15.] – The World Congress of Lithuanian Lawyers
declared on 24–31 May 1992: “Exclusively a strong presidency can ensure the stability of
social processes, block the way to chaos and neutralise the destructivity of those thirsting for
revenge, in order to become the buttress of the further development of democracy.” [I.
Kaganas Lietuvos Respublikos valdymo forma Lietuvos valstybingumo teisines problemos:
Pirmojo pasaulio leituviu teisininku kongreso straipsniu ir teziu rinkinys (Vilnius 1993), p.
7.] – It was President ALGIRDAS BRAZAUSKAS who took a stand when his vetoes were ignored,
in that “To be able to operate efficiently, the President should also be given more power,
following the introduction of the democratic pattern of governance.” [Lietuvos rytas
(February 14, 1997).]
18 Vaišvila Conception of the State... [note 4], pp. 32–36.
19 Also see, by Alfonsas Vaišvila, ‘Место наказания в правовом государстве’ in
Проблеми вдосконаления законодавства та практика його застосувания з
урахуванням прогнозу злочинности 1 (Луганськ 1999), pp. 44–49 [Вісник

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(Legal Personalism as a Response) This is the reason why


the author developed his theory of so-called legal personalism,
based on the axiomatics of the geometrical formula of law, taken as
a compound predicate. I avail just to mention some of its
fundamental tenets here. Accordingly, the equivalence in reciprocity
of social relations is the pre-requisite of any open society. It
follows therefrom that “subjective right is not the property of the
individual but, as a compound predicate, is a relation established
for the mutual protection of the interests of all persons concerned.”
Consequently, on the ground of the reciprocity having come about
with the “unity of rights and duties”, the individual is, depending
upon his/her deeds, always in balance with his/her own respective
rights and duties, because “by fulfilling or rejecting the latter, he
has the former recognised, legalised or annihilated” automatically.
And indeed, there is no other way to choose, for “Rights without
obligations are nothing but downright privileges, while duties
without rights can only stand for sheer violence.”20

A Call for Local Experience Assessed The oeuvre presented


herewith is not a cry for help but the manifestation of a responsible
scholarship gradually realising its own strength and independence.
It is rewarding to learn that the same ethos that, after the Soviet
regime is bygone, can introduce Western trends as desirable
patterns to be followed with natural ease, also indicates the need
for new foundations, by building up—having left behind its earlier
forms rooted in Bolshevik ideology—own world-view consequently.
Луганського інституту внутрішніх справ МВС Украіни] and ‘Социальное правовое
государство: Приобретаемая и теряемая реальность’ in Конституционно-правовое
проблемы формирования социального правового государства Материалы
международной конференции (Минск: Белорусский государственный университет
2000), pp. 24–28.
20 “Die Äquivalenz der Austausche […ist…] die Einheit von Rechten (der Erlaubnis) und
Pflichten (dem Gebot) zu bestimmen […:…] die Menschenrechte werden nach der Erfüllung
oder der Verzicht der entsprechenden Pflichten erworben, legalisiert oder verloren.” “Das
subjektive Recht ist nicht die Eigenschaft des Individuums, es ist ein mehrstelliges Prädikat
bzw. das Verhältnis, das für den gegenseitigen Schutz der Interessen der Personen geschaffen
ist.” “Das Recht ohne Pflicht gleich einen Privilegien, die Pflicht ohne Recht ist bloße
Gewalt.”

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This is exactly what this magisterial work just surveyed did. Having
overviewed the mostly pattern-following and more or less promising
or disappointing results of Lithuanian domestic development
spanning over nearly one and a half decades as givens of their
history, it assessed them monographically. His very approach
presumed sound scepticism as pre-requisite to any responsibly
constructive thought, subjecting any result to scrutiny, omitting
reliance on either clearly personal [ad hominem] or exclusively
authoritarian [ad autoritatem] reasons in their evaluation.
It would be a shock if the arrogance of force could define
again itself in the guise of the renewed ideology of JOHANN
GOTTLIEB FICHTE’s “So much the worse for the facts”21—this time
at the overture to the 21st century. It is a fact notwithstanding that
ideas and constructions that stream towards us from overseas are
expected to get rooted in a soil poor in resources, targeting a
disintegrated society with distorted morals, in which only reliance
to individual surviving strategies have still proven to be exclusively
adequate a personal response amidst an economy fallen prey to the
stronger and professionally only preoccupied with the exhaustion of
national property.
According to the creed of many, the principles of free market,
democracy and parliamentarism (with rule of law and human rights
in the background) offer a kind of panacea curing all the ills in the
world. Still, social science should be given the chance to record—
if found so—that the same staff may not work here as it is used to
work there amidst its natural surrounding; not with the same cost
& benefit ratio at the least. Social science is open for ideas to both
receive in test and reject upon criticism. Moreover, scholarship in
Central and Eastern Europe is growingly aware of the fact that what
it can provide is by far not marginal feedback but the very first
testing and teasing proof on social embeddedness of ideas and
ideals exported. For whatever we think of the cultural
anthropological preconditions of such guiding stars of modernity
and of the scientific verifiability of the concept of man they

21 “If the facts do not fit to the theory, the worse for the facts”—or „Wenn die Tatsachen nicht
mit der Theorie übereinstimmen, umso schlimmer für die Tatsachen”—, understood originally
in an exclusively philosophical sense.

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postulate,22 Western social development (with the ideocracy of


DWORKIN, HABERMAS and RAWLS, in terms of which values are just
a random function of supporting majority, and rights are made one
of the gratuitous accessories of any human existence) is by no
means separable from the economic reserves of such a
development. Or, operation of any societal complexity requires
resources in both social organisation and material production. In
the Atlantic world, presently they seem they are available either
through economic reproduction or by using up reserves.
Consequently, if it proves to be too wasteful or costly, less powerful
regions of the world may encounter problems of financing, for they
are in want of reserves.
Scholarly sensitivity to issues like this has developed in the
Western world as well,23 even if not yet transcending local self-
analysis. Until now, scholars have failed to address either other
regions or their ideals’ very preconditions. This is why the issues
raised above are still questions—on and for us. This is why they
shall have to be tackled at least by those concerned.

22 If the presuppositions of democracy are not provable, only tradition axiomatically taken
from the credo of the Enlightenment can be the case. Cf. János Frivaldszky ‘Gondolatok az
emberi jogok radikális szemléletébõl fakadó problémákról’ [Thoughts on problems arising
from the radical approach to human rights] in Egy európai alkotmány felé A nizzai Alapvetõ
Jogok Chartája és a Konvent [Towards a European constitution: the Charter of Fundamental
Rights and the European Convention on Human Rights] ed. János Frivaldszky (Budapest:
JTMR Faludi Akadémia & OCIPE Magyarország 2003), pp. 63–74 [Agóra II].
23 Cf., e.g., Stephen Holmes & Cass R. Sunstein The Cost of Rights Why Liberty Defends
on Taxes (New York: Norton 1999) 255 pp. as well as, by Richard A. Posner, The Economics
of Justice (Cambridge, Mass.: Harvard University Press 1983) xiii + 415 pp. and Economic
Analysis of Law (New York: Aspen Law & Business 1998) xxi + 808 pp. As an outlook, see
also Western Rights? Post-communist Application, ed. András Sajó (The Hague: Kluwer Law
International 1996) xviii + 386 pp.

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NOW?
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IN BONDAGE OF PARADOXES
Or Deadlock at the Peak of the Law
we have Created for Ourselves*
(A ’Good’ Constitution) Our Constitution is good and calls
for immutability, only our nation has not got the maturity yet to
appreciate and enforce constitutional values—we may hear such
and similar sentences from many quarters and especially from
jurists who once at their time formed it through their “invisible
constitution”, as a diagnosis that can shock the commoner in all of
us.1 What are they speaking about, and what does the experience of
jurisprudence accumulated for thousands of years speak about?
Well, the latter testifies first of all to the fact that law in our
continent is just what is made in due form by those entitled to

* First published in shortened form as ‘Ellentmondások fogságában, avagy patthelyzet a jog


csúcsain, mit magunknak teremtettünk’ [Captures by paradoxes, or deadlock at the peak of
the law we have created for ourselves] Magyar Nemzet [Hungarian Nation – a daily] LXX
(2007. szeptember 28., Friday) 265 [Budapest edition], p. 6 <http://www.mno.hu/portal
/440614?searchtext=>.
1. “Namely, wouldn’t you touch the Constitution, as today so many are urging it?—There
isn’t any problem with the Constitution. I know quite well the constitutions of the world: a
parliamentary democracy may be correctly operated by our basic law. The great moral debts
of the regime change did not depend on the Constitution.” László Sólyom [interviewed by
Szabolcs Szeretõ & Károly Villányi] ‘A jogállam próbája: Az alkotmánnyal az égvilágon
semmi baj nincs’ [Test of the rule of law: There isn’t any problem with the Constitution]
Magyar Nemzet (May 12, 2007) & <http://mn.mno.hu/index.mno?cikk=410927&rvt=9&s
_text=az+alkotm%E1nnyal+az+%E9gvil%E1gon&s_texttype=1> as well as <http://
www.keh.hu/keh/interjuk/20070512magyar_nemzet.html>. János Zlinszky exactly flogs for
decisive responsibility of the lack of public participation in his ‘Az alkotmányosság alkonya’
[Twilight of constitutionality] Magyar Szemle [Hungarian review] XVI (August 2007), No.
78, pp. 8–14 & <http://www.magyarszemle.hu/szamok/2007/4/Az_alkotmanyossag_
alkonya>, certainly undertaking not slim bias in order to substantiate rhetorical effects.
Because, according to him, “the rub is not connected with the Constitution! [...] Where is
then the mistake? It is to be found also in the fact—his almost exclusive answer holds on—
that a genuinely constitutional culture, ...constitutional thinking and scale of values are
missing from our society... and don’t live in the citizens, [...] they don’t bear, don’t validate
them... [for] priority of the financial values changed priority of the moral values... We
condone of... We tolerate... we acknowledge, with conditioning brought still from the cheery
shed of goulash-communism, keeping our mouth shut, while looking for a cosy corner for
ourselves.”

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promulgate it. Therefore, only provided that anyone can be held


responsible for the outcome, then he/she is responsible also for the
prevailing result thereof, since nothing except the law can serve us
as balm and defence in our daily affairs and societal troubles.
Moreover, this responsibility is also objective, for neither former
well-intention nor good faith of any of its authors can compensate
us for incidental paltriness.
And what is about the people blessed by God, whose alleged
immaturity is referred to this way by such highest jurists? Well, it
is better for us to know what they certainly also know: no alleged
immaturity may support any excuse or objection. Students of law in
our country and also at other places of the world learn from their
first university semester exactly that law is to serve by far not
angels or ideal beings but frail humans: just a society composed of
the most various individuals who are articulated in diverging
interests and may in their variety span from the holiness of moral
devotion to crookedness of a murderer. Or, law is not an ideal mind
quiz, to be guessed for spending leisure time, but a demand for life
or death of the cruel societal reality as given; the law has to share
in its prevailing ruthlessness. Therefore we expect it to give answer
to everything what can at all be imagined and what may occur
actually. Moreover, jurisprudence directly suggests—what is
evidence for our everyday sense too—that as law is what has been
issued as such, we may not contest from it the incidental legislatory
aim or the direct intent for what we now happen to miss in it. Since
the law-maker calls also us when he keeps silence. Or, the one who
as a member of the government having come into power by the first
free election held after the destruction of four decades’ dictatorship
apologises now for the irrecoverable refraining from action of his
past government by having deluded of their expectations of hoped-
for modesty and withdrawal on behalf of the former beneficiaries,2
will on final analysis declare himself also retrospectively
irresponsible.

2 Cf., in representation of the characteristic answers of that time’s governing forces, e.g.,
Géza Jeszenszky ‘Bevallani a múltat! (Válasz Lovas István július 19-i írására)’ [Confess the
past! (Reply to István Lovas’ article on 19 July)] Magyar Nemzet LXX (August 10, 2007)
212, p. 6 & <http://mn.mno.hu/index.mno?cikk=424579&rvt=15&rvt2=110&s_text=
jeszenszky+g%E9za&s_texttype=1>.

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As law assures equal chances in its game for all its


addressees (until differentiation or discrimination is made), may
we rightly wonder if anyone or groups of ones actually play it? May
we resent from them that what we ourselves have granted to them?
Did not we learn it already in early childhood that thunderbolt is
used to act as thunderbolt, winter as winter, jackal as jackal,
because all they had been created or made or developed like this?
And is it not exactly for this very reason that we were convinced
about all that that, by becoming adult, we could learn how to
manage and defend ourselves from all these? And, in a
civilisational perspective, do not we draw from the wisdom of the
Far-East that our world is good because everything is such as it is
and just for this given reason we have to surround it with ceaseless
care and concern? Reviewing our European history, we know from
JUSTINIAN, FREDERICK THE GREAT, NAPOLEON and all epoch-making
legislators that he who sets the rules of the all-societal game will
conceive a society according to ideas inherent in them.3 Moreover,
we may even make a step forward. Whether is anybody now
irritated on grounds of Õszöd indeed?4 Or, is one rather driven by
the slowly ripening awareness that acting as unfaithful stewards, in
the last two decades we have hardly gained, though we lost huge a
lot from what we have still preserved as treasures from our legacy?
Or, by the mere fact of living with reversed priorities, instead of
caring for national defence and strategic survival, did we perhaps
build castles in the air for a magic law indeed? For what other

3 In the waive of ancient fore-patterns, this deep idea, refined by the ideas of the
Enlightenment, worked steadily all through in the rulers’ and jurisprudents’ inspiration of
the legislation made during feudal absolutism and of the classical codification made in
France, Austria, Germany, then in Switzerland, and further on as well uninterruptedly. For a
theoretical background, cf., by the author, Codification as a Socio-historical Phenomenon
(Budapest: Akadémiai Kiadó 1991) viii + 391 pp. and Lectures on the Paradigms of Legal
Thinking (Budapest: Akadémiai Kiadó 1999) vii + 279 pp. [Philosophiae Iuris].
4 As the relevant Wikipedia entry holds, “The Hungarian Prime Minister FERENC
GYURCSÁNY gave a May 2006 closed meeting speech in Balatonõszöd to the MSzP
[Hungarian Socialist Party] members of the National Assembly of Hungary. This meeting was
supposed to be confidential but the Prime Minister’ speech was taped and Magyar Rádió
[Hungarian Radio] began broadcasting it late afternoon on Sunday September 17, 2006.”
See <http://en.wikipedia.org/wiki/Ferenc_Gyurcs%C3%A1ny%27s_speech_in_Balaton
%C5%91sz%C3%B6d_in_2006_May> and <http://www.nowpublic.com/the_hungarian_
prime_minister_has_a_fit_of_frankness> as well.

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reason do anybody seem to be astonished now, watching gamblers


who play exactly the rules of this law? Whether is it their
responsibility if this law abounds in gaps upon which anyone may
ground legally protected demands for scot-free? In turn, if I
disapprove of whatever individual or group game in actual events,
as stage manager I may exclusively be displeased at most at my
own disability while having issued such rules. Moreover, in the
name of the law I am not even entitled to denominate the subjects
of my aversion, indignation or just apprehension, since in law I can
only separate “us” from “them” in terms of rule abidance and rule
breaking.

(With Moral Crisis behind It) Anatomising the spirit of law


further in a dilemma—raised nowadays (although having the
chance of occurring at any time in the past, present, and perhaps
also in the future)—: if the head of the state would adjudge now
that the governing party had won election by bounce, then—as
recently he was emphetically called in journalism5—meeting his
charges defined by the Constitution, he could/should even dissolve
the parliament and proceed to new general elections; since anyone
could qualify such a step as legally problematic only as a result of
a procedure institutionalised to its authoritative statement; but
calculating with power distribution in parliament, no forum needed
for such a conclusion to reach could be easily formed. Well, such a
reasoning seems to be much astounding at the first sight, although
it is one of the basic messages of our modern formal law in fact that
the journalist explained, as a foundation stone of our legal thinking
everywhere. Accordingly—and contrary to everyday reason—no
legal quality does hold in itself (“I have the right to” or “I have
contravened the law”) but only as an issue of the competent state
organ having established it in a given procedure. Therefore
irrespectively of the circumstance that the President of the
Republic might have had good reason to be unwilling to commit

5 Péter Techet ‘Ön se féljen, elnök úr’ [Mr. President, neither you should be afraid of]
Magyar Nemzet LXX (March 29, 2007) 74, p. 6 & <http://mn.mno.hu/index.mno?cikk=
403932&rvt=15> and, in antecedence, cf. also his ‘Az alkotmány õre és lehetõségei’ [The
guard of the Constitution and its possibilities] Magyar Nemzet LXIX (December 5, 2006)
284, p. 6 & <http://mn.mno.hu/index.mno?cikk=386245&rvt=15&norel=1&pass=3>.

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himself to such a step all through hazardous and risky as being


based on such a by far implicit and therefore extremely weak
authorisation, his averting by reference to the absence of explicit
warrant and refusal of any radical argument are still not of
necessarily convincing a strength; at any rate, as compared to his
own past in rights’s protection, this is close to inconsequentiality
when, turning against the prevailing practice of Socialism and in
lack of formal licensing, he did not conclude still to prohibition,
usual in dictatorships, but to the freedom of action open on the
given field.6
Now reassuringly he is discoursing on moral crisis caused by,
and implying the responsibility of, a party, of the Prime Minister
and his government, which he claims to be the case, due to the
confessions of the Prime Minister slipped out from a closed party-
circle to the public. We may raise the question: what may be
hidden behind the logic of such an attitude? Although we may
freely agree with others’ personal impression, it is worth examining
from closer quarter this answer from the point of view of
consequentiality and competence.
Truly speaking, stating moral crisis is a mere cover up of the
fact that our proudly old-new Constitution he assisted to as the then
founding President of the Constitutional Court and what he now as
head of state proclaims to be unproblematic and not calling for
change, has nothing to say about such a behaviour injurious to and
eluding the very spirit of the Constitution, moreover, it has even
less any disposal forbidding or sanctioning this. Or, if neither the
head of state nor anybody else does dispose of any procedural path
or in-law chance to sanction it, then it becomes also questionable
whether or not we may at all take it as running against the law. And
the wise answer formulated by other illustrious jurists,7 according
to which we are now to eat only what we have cooked for ourselves

6 László Sólyom ‘Mit szabad és mit nem? Capriccio polgári jogi témákra’ [What is permitted
and what is not? Capriccio to civil law topics] Valóság XXVIII (1985) 8, pp. 12–24. It is to
note that the perspective of the author as civil rights defender in the last years of Socialism
was obviously that of the citizen, i.e., according to his personal interest and professional
experience, mostly reduced to civil law, what certainly does not give assurance that it can
directly be lifted or equated to that of public law.
7 See explicitly Zlinszky [note 1], in a manner similar to the stand of most jurist-politicians
of today’s opposition forces.

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(since our wretched people would have or would have had to place
its votes at general election more prudentially) may hardly be
higher or more reassuring than if it were to protect such law and
order within the range of which if attacked, I may at the most flee
into suicide in want of any other legally protected alternative—and
this not being forbidden, I may quiet down in the perfection of our
tirelessly refined law and order beyond all doubts.
And may the jurist acting now as head of state venture a word
on moral crisis? I think, just he could do it hardly, at any rate
without undertaking any discrepancy lengthening into his own
past. Since at the time of the unwarranted but rather apparent
(albeit creeping) re-writing of our established Constitution, just the
Constitutional Court he then headed cancelled—by limiting its
understanding of the Rule of Law to nothing except formal certainty
of and security in law, granting such an understanding also
constitutional force in its safe awareness of infallibility—any
relevance of considerations to justice, morality and/or rational
common sense, from the circle of values preferredly protected in
case a conflict would arise.8 Thereby it had showered to the public
in such an unforeseeable flow the release and emptying of law from
its safest foundation, namely, morality, that a prominent workshop
of constitutional law9 was prompted within short notice to doubt
also the constitutionality of the legal basis of the court ruling on the
final condemnation of the financial manipulation in the TOCSIK
affair,10 granting a legally irreproachable status to the socially
destructive corruption of the excuse “immoral but lawful”.11 In
turn, if the Constitutional Court’s above reasoning is justifiable at

8 For the background, context and international criticism, cf., by the author, ‘Creeping
Renovation of Law through Constitutional Judiciary?’ in the present volume.
9 From the Chair of Constitutional Law at the University of Pécs, Péter Tilk ‘A jogállamiság
és a jóerkölcs viszonya a Ptk. semmisségi szabályában’ [Relationship between rule of law
and good moral in the rule of nullity of the Civil Code] Cég és jog [Company and law] V
(2003) 12, pp. 4–6.
10 Cf., e.g., P. J. O’Rourke ‘The Godfather Decade: An Encounter with Post-communist
Corruption’ Foreign Affairs (November–December 2000), p. 4 & <http://www.foreignpolicy.
com/Ning/archive/archive/121/godfatherdecade.PDF>.
11 For recent treatment in professional fora, cf., e.g., the reviews by Murray L. Schwartz ‘The
Zeal of the Civil Advocate’ American Bar Foundation Research Journal 8 (Summer 1983) 3,
pp. 543–563 & <http://links.jstor.org/sici?sici=0361-9486(198322)8%3A3%3C

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all, then the journalist’s avant-garde call is also justifiable. For the
undergraduate student of our faculty who acted here as journalist
did not claim more than what the unprecedented innovation of the
Constitutional Court did; merely he operated with replacements as
referred to the given situation. Accordingly, if security in law stands
for safety and certainty of legal assessment in practice, then by the
judicial declaration of immoral contracts to be null and void the
self-disqualification is retroactively peremptory. Consequently—as
the constitutionalist’s argument holds on—the underlying disposal
could be constitutional only provided that the law defined by
previously exhaustive precision what is to be considered as
immoral. That is to say, in case the general clause of morality would
be replaced by exact enumeration. Well, after all, taking seriously
the logical consequence, references to both morality and value-
boundedness should have for once and all been driven out of the
domain of law.12
All in all, logic can only conclude from the founding
constitutional fathers’ stand (who for almost a decade could write

543%3ATZOTCA%3E2.0.CO%3B2-4> and Joseph P. Tomain ‘The Legal Heresiarchs’


American Bar Foundation Research Journal 9 (Summer 1984) 3, pp. 693–703 &
<http://links.jstor.org/sici?sici=0361-9486(198422)9%3A3%3C693%3ATLHL%22G
%3E2.0.CO%3B2-H>.
12 Luckily enough, our acting government did not slip into such a tragic dénouement.
According to the new Civil Code in preparation by the Ministry for Justice—Polgári
törvénykönyv Javaslat: Normaszöveg [Bill: Text] (Budapest, 2006. december 31.) &
<http://www.irm.gov.hu/download/ptknormaszoveg.pdf/ptknormaszoveg.pdf>, § 5:72
[Contract contrary to good moral] “The contract obviously contrary to good moral is void.”
(p. 255). Its justification is quite unambiguous—not only in merit, but in answering our
query as well. Accordingly, “the contract may also be invalid, if it runs against the demands
of good moral without fringing upon any provision of the law. No view can be upheld
according to which anything not forbidden explicitly by legal provisions may be freely done.
[...] No legal provision is suitable to define in details the contentual limits and criteria of
»good moral«. Anyway, once the moral norm has been transformed into a legal one to become
a legal provision itself, the contract will not then be »obviously contrary to good moral« but
to the legal provision itself. For the system of moral norms is not stated in legal norms. It gets
formed firstly by public opinion, and judicial practice is destined to convey the system of
moral norms—shaped by the accepted public opinion—to contractual law.” Polgári
törvénykönyv Ötödik könyv, Kötelmi jog; Javaslat: Normaszöveg és indokolás [Draft text and
motivation of the Book V of the Civil code] (Budapest, July 31, 2006) &
<http://www.irm.gov.hu/download/otodiktervezet.pdf/otodiktervezet.pdf>, p.76.
Within some months, however, by change of ministers, the following modification has in
the meantime been inserted: § 5:74 “(1) The consumer contract obviously contrary to good

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their “invisible constitution” by re-writing all through the


contexture of the Constitution itself undisturbedly as adjudicating
constitutional justices) that in want of explicit disposal and
sanctioning, not even an election won by fraud may qualify as
unlawful, moreover, its moral condemnation is also legally
irrelevant, mattering hardly more than a private opinion.
Accordingly, if the head of state denunciates the country’s twisting
in moral crisis without ascribing specific legal status or
consequence to this (i.e., without the authoritative establishment of
a case of law-abidance or law-breaking in official procedure), then
he only shares with us his personal view or sociologising opinion,
impersonalised by reference to public opinion. Or, it is just a debut
symbolically asserting his moral self-portrait as a substitute action
with moral radiation at the most.
At the same time, if worrying about present conditions we try
to see deeper by detecting the enigmatic strings—which seem to
disappear in various knots but the longer we continue untangling
them, they appear as leading from the farer and (according to some
fears) to the even more farer—of the road connecting the present
with the past, on last resort all this seems to be as if our full
political class set a trap for itself. Since till today, it has stood for
both such Constitution and constitutional court adjudicational
activism exhausted by creeping constitution re-making—apart
from some occasional snort and naughty exhibitionism. In certain
parts, parties and groups of it—accompanied by undivided hurrah
on behalf of the country’s jurisprudents and political scientists,

moral is void. (2) The same as (1) holds also for contracts concluded through participation
by organs and undertakings managing public property, as well as in cases stipulated by the
law.” <http://irm.gov.hu/download/ptk-normaszoveg-tervezet_20071029.pdf/ptk-norma
szoveg-tervezet_20071029.pdf>. For—as its motivation holds—“In market economy it
cannot be upheld as a general rule that contracting partners may encounter the available
final sanction for anything not previously prohibited by positive law. This is to be held as the
unproportionate limitation of contractual freedom. In case of consumer contracts as an
exception to this the characteristically defenceless position of the customer is compensated
by the recognition of widened judicial weighing. In other contractual relationships, the so
called prohibited contract is fairly enough to assure the safe functioning of economy and
business.” Az új Polgári Törvénykönyv tervezete (Az Igazságügyi és Rendészeti Minisztérium
2007. december 3-ig közigazgatási egyeztetésre bocsátott javaslata) [Draft of the civil code]
in <http://irm.gov.hu/download/ptk-osszefoglalo_20071029.pdf/ptk-osszefoglalo_2007
1029.pdf>.

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rather than by raising questions or doubts responsibly—it has


always concluded apparently negligible concessions only, taken
temporarily as advantageous to some hidden secondary issues;
however, under the spell of its own magnificent existence, survival,
stratagem, power, and nearly endless freedom, it did not realise that
such creativities in the service of diverging interests have always
been directed to one single sense, by having ceaselessly run into
the repeatedly further breaking down of still existing barriers.

(In Want of Legal Defence Available) And then, we have not


said a word about cut-back of armed defence of the country, and,
what is even more painfully to observe in my profession, about our
glaring disinterest in the effective implementation of humanitarian
law instruments to defend ourselves, our remained property and
cultural goods, as compared to the preparation done in our nearer
and farer neighbourhood. Just as if those responsible were actually
to live in delirium fever of “the end of history”,13 calculating with
their blessed activity to be carried on with national mandate in this
historical environment in short-term only.
And what would happen if one day we awoke that outrage
organised by the state would accompany civil governance? Could our
law extend protection to us if it would happen—by any actor, for
whatever reason and under any condition—that what had already
occurred once, in the live laboratory of Socialism (to create a
brave new world indeed): vanishing, tortures, murders were to be
used by agents of the state machinery to “pacify” people, with
proper foresight to that their acts should be granted pardon or
become statute-barred within due time-limits? Whilst in over-
politicised reactions to daily scrums or short-lived scandals via
media, diligent preparations of new bills are on the agenda (mostly

13 In his theory, Francis Fukuyama—The End of History and the Last Man (New York: The
Free Press & Toronto: Maxwell Macmillan Canada [& London: Penguin] 1992) xxiii + p.
418—as universal oracle in American mass-effect for some years, but soon withdrawn—
because rocked by the next recognition subsequently transformed into a basic doctrine of the
American world politics, cf., among others, Samuel P. Huntington ‘The Clash of Civilizations’
Foreign Affairs 72 (Summer 1993) 3, pp. 22–28 [enlarged in The Clash of Civilizations and
the Remaking of World Order (New York: Simon & Schuster 1996) 367 pp.]—, already
dreamed about the global victory of liberalism, in which there will be no reason left to fight
for, since national autonomies as possible roots of conflict will lose their sense, too.

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aiming further limitation of main civil rights only) and release some
day of killers sentenced to life imprisonment is pondered by and
through,14 well, what would be the answer of our proudly self-
conceited rule of law, if state terrorism in devastation of humans
sweeped over our people again? Whatever shameful it may be, but:
silence, incompetence and impotence. After one and half a decade
unchangedly, the last word said on the issue is the same
internationally unique decision of our Constitutional Court.15 In
accordance with it, the legality of the cynical negative self-
prescription of the predecessor regime (just as an act of self-
pardoning, also to be held unalterable) overwrites the chances of
the successor regime. For the aerial nobleness of constitutional
justices did not sense any difference in whether or not criminal
prosecution had been to end without success despite efforts
required by the law (e.g., in cases of infanticide or theft) or had
been intimidated or deterred from having a start, that is, whether
legal normality or abnormality by a state based on criminal terror
over citizens and state machinery alike, had operated the period of
statutory prescription to be expired. For it is to note that from that
time on, neighbouring states have already edified from our
inability, and edicted specific laws with the prospective effect that
dictatorial annihilation of law shall never be recognised by the
Rule of Law for fear that self-legalisation of terrorism can end in its
re-legitimation and incite other states in trouble as well to have its
test anew. Well, has any political force cropped up already in our
country to prevent the repetition of such a scandalous solution vis-
à-vis our future at least? Or has silence proven to be more
advantageous for all involved partners, only to hide their former
(often dubious) role?
Early 20th century author of the doctrine of modern formal
law, HANS KELSEN cared in his time for himself building ramparts so
that liberal democratic conviction may not endanger basic values
by devaluating the protection of humans and their community. It

14 What at proper place and within due limits all may of course be rightly justified.
15 Cf. Coming to Terms with the Past under the Rule of Law The German and the Czech
Models, ed. Csaba Varga (Budapest 1994) xxvii + 178 pp. [Windsor Klub] and note 8.

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seems that successors today are less tender, as they have been
overcome—whatever should be the price of our self-closure in the
bondage of paradoxes to be paid by all us in our common future for
a long time—by mere principles of their own doctrinairism.

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AT THE CROSSROADS
OF CIVIL OBEDIENCE AND
DISOBEDIENCE*
(Civil Disobedience) Civil disobedience is an idea that
stands for confrontation and moral rebellion, describing one of the
feasible ways of how to enforce our conscience’s word. This is one
of the historically developed choices for self-sacrificing for others
in human altruism with implied risk taken, which exerts its impact
mostly in particular manners, on by-pass roads it channels. Just
because all its elements are thoroughly pervaded by undertaking a
moral front as a most specific feature of it—the first time, the
expression had been used by the moral hero THOREAU in his
conscientious rebellion against American slavery, then by GHANDI
launching a movement that conceptualised it as a programmatic
tenet after more than half a century—, certainly it is not for
antipathetic or cynical outsiders and even less for those counter-
interested to qualify it. When the actor identifies his deed as civil
disobedience, abbreviatedly he/she simply refers the intended
reason and target back to a given tradition.
Civil disobedience is not a legal concept. Moreover, it is not
part of the law’s concept in a larger sense either, as it just denies
the compulsory force of some valid law in the light of the superior
validity of some higher order, in order just to change this very law.
At the same time, not even the expression itself is a legal concept,
as the law has no reference to it. Or, civil disobedience is an
outside event, either heterogeneous or differently homogeneous, in
the course of which some provision of the valid law is broken and
to the perception of which the law can only react by meting out the
prescribed sanction.
* First published as ‘A polgári engedetlenség és az erkölcs szava (Különösen visszás, ha a
morális lázadás gyakorlását a közhatalom birtokosa minõsítgeti)’ [Civil disobedience and the
ethical stand (It is outstandingly awkward to see representatives of the public power to
qualify practiced moral rebellion)] Magyar Nemzet [Hungarian nation – a daily] LXX (2007.
február 8.), Vélemény, p. 6 & <http://mn.mno.hu/index.mno?cikk=396021&rvt=15>,
then enlarged as ‘A polgári engedelmesség és engedetlenség válaszútjain’ in Az év esszéi
2007 Antológia [Anthology of the essays of the year], szerk. Andrea Ekler & Ildikó Rosonczy
(Budapest: Magyar Napló Kiadó 2007), pp. 212–218.

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At this point it is high time to revealing the subtly complex


network of mutual impacts in operation between morality and law,
when civil disobedience challenges both of them. For, on the one
hand, civil disobedience is a moral challenge to law. It is an open
declaration of conflict in terms of which the law is intentionally
broken under some moral demand. On the other hand, the law
which is calibrated to sense the outside world through the lenses of
its own categorial system exclusively, may not and will not perceive
anything else in this than the mere breach of some legal provisions.
At the same time, considering the fact that civil disobedience
usually achieves its target by forcing the legal machinery to
response, the offense is mostly made publicly and with defiant
unambigouity. For its provocative gesture is just aimed at
excluding, on behalf of that machinery, any insensitivity, evasion,
quibble or compromise solution by avoiding a definite answer to be
offered by the law. On the law’s side, all this is simply taken as an
injury. For law has no access or path to sense moral gesture or
tradition called civil disobedience in the deed, just because no
such concept is provided for and by the law. Consequently, instead
of the merits or moral connotations of the deed, exclusively the act
through which the injury was committed will be named by the law.
Accordingly, not even the fact that the offender acted
magnanimously as pushed by moral considerations in order to
provoke a change to be made in law can be part of the officially
established facts of the case, unless there is a specific provision on
all concrete individual circumstances of the deed to be both
recorded and considered for the judgment rendered. Otherwise
such moral motive is to be noticed within the proceedings as
personal feature at the most—without its chance to add to legal
qualification itself.
It follows therefrom that not even the conceptual expression
itself is normative but merely descriptive as conventionally
established. Albeit its moral motive offering self-sacrifice may be
accompanied by pathos in its societal perception, this is hardly a
reason to stint civil disobedients this quality by disqualifying them,
if we happen not to agree with them or their deed. It is somewhat
awkward to see representatives of state power to qualify civil

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disobedience practiced. For those against whom moral rebellion


(culminating in intentional law breaking) is directed are from the
beginning loosers in the moral dilemma having led to civil
disobedience: it was the civil disobedient and not them who first
came out for against some insupportable condition. Their
acquiescence is in vain covered by the holy gown of the rule of law;
at most the conceptual levels will be mistaken, as the mere fact of
having recoursed to civil disobedience will testify to that the
institutional rule of law network failed—as proved to be helpless—
in the given situation.
The operational mechanism of civil disobedience lies in
dislocating state and legal practices from daily routine. They have
either to punish (with teeth furiously locked up and taste bittered
in the mouth) or to acknowledge own defeat, looking for bypasses
to support the underlying moral cause. Or, civil disobedience is by
definition exceptional and spoiling everyday peace by its declaring
a conflict irrevocably. It is also of a polarising effect by announcing
a split made in society, which is the more divisive the more live it
is, the stake being the fate of moral considerations shared by
powerful sectors of society.
Therefore it is understandable (although hardly sympathetic)
to encounter power reactions these times—particularly when the
official stand is not shared by the social majority—damping down
the merits by either over-dimensioning the injury or rolling down
the original intent to disqualify the person or his/her case.
The world must be abject in which such huge amount of
insensitivity, stubborness, life-strange causeless conceit or simple
power game may be compressed into symbolic values by gratuitous
gestures that will either force the community to prostrate itself
before the state’s altar or lead to explosion. It is abject to encounter
such a rule of law that in addition to repeating own mantras has no
sensitivity left to curing actual troubles.
Situations of unlimited power are also dangerous for being at
the same time both challenging and self-exciting. For Rule of Law
remains an empty framework and mere procedural frame until it
will be impregnated with contents worth of being lived in a
democracy asserting final human values. Well, it was a one-sided

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official act exercised as a symbolic gesture that the action of so


called cordon removal called to account.1
It was strange to perceive continuity in that the same
intellectual class of media that had once greeted past disorder
(called taxi blockade) as movement of civil disobedience and
heated it further in order to eventually overturn the government,2
now, as unconsecrated prelate of omniscience, deprived the event
of its quality of civil disobedience by identifying it with a party
action, instead of a moral cause. At that time and now as well,
media mainstream failed to cover its political judgment with
objective knowledge or relevant arguments. For we may remember
that taxi-blockaders, taken away by merely pecuniary self-interest,
brought millions of humans into case of necessity, while its rousing
fighters fled as rats from assuming the consequences of their
unlawful acts. Accordingly, it is not an issue of political likes or
dislikes whether or not we had to qualify the event as a case of civil
disobedience or just of common law-breaking. In case we had
called it civil disobedience, we would have deprived its concept of
its differential sense by identifying mob reactions with the self-
sacrificing moral espousal of HENRY DAVID THOREAU, MAHATMA
GANDHI, MARTIN LUTHER KING and others, putting the state in an
insoluble conflict: either excusing resistance with no sanction
(risking the state’s moral collapse) or meting out sanctions to a
mass self-reproducing endlessly (unfeasible in any long run as
threatening with institutional collapse). Well, the self-qualification
is hardly to contest from those having dismantled the cordon
yesterday if accompanied by the risk of getting sanctioned. Today’s
wisdom of mainstream journalism announcing it “contravention,

1 For the event on 2 February 2007, cf., e.g., <http://www.budapestsun.com


/cikk.php?id=12083>, <http://www.budapestsun.com/cikk.php?id=12083> and
<http://www.eppfrakcio.hu/en/new/96/>.
2 Cf., by the author, Transition to Rule of Law On the Democratic Transformation in Hungary
(Budapest: ELTE “Comparative Legal Cultures” Project 1995), part on »Skirmishes and the
Game’s Rule«, pp. 91 et seq. [Philosophiae Iuris], and for the historical contexture, Nigel
Swain Hungary: Political Developments 1989–90 (Liverpool: The University of Liverpool
n.y.) 31 p. [Centre for Central and Eastern European Studies Working Paper 4]
<http://www.liv.ac.uk/history/research/ceg_pdfs/Book4.pdf>.

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not civil disobedience”3 sneakes on total ignorance as to its genuine


nature. (It is their old self that psychologically can exclusively
motivate such a stand, which once channelled political decision
makers to become reconciled to taxi blockade as civil disobedience
and also granting blockaders mercy.) For—legally speaking—civil
disobedience is common violation of the law which—speaking in
terms of moral intention or the logic of a political action—, as
committed intentionally, without violence, in public, with the
penalty (which is by all means to be meted out) undertaken from
the beginning, does serve ideal (not material) targets, just in order
to induce change to be effected in law. Discussing the fact this time
whether or not each and every procedural path in law has
previously been exhausted is highly irrelevant. For, on the one
hand, no such condition is implied by such an utterly a-legal
concept, and, on the other, its long tradition refers this to those
taking the risk to deliberate on the alternatives, if any; that is, if
(even in a plain cost/benefit analysis) there are further ways open
to them, leading to comparable outcome with less risks. In policing
and judicial reaction to such injury, also government has to face
this challenge by making it clear for the daily practice of
constitutional civil rights, namely, what will separate civil
governance from a police state, proceeding on with unquestionable
autocracy.